King ex rel. King v. Floyd County Board of Education

NELSON, J., delivered the opinion of the court, in which NORRIS, J., joined. ENGEL, J. (pp. 627-31), delivered a separate dissenting opinion.

OPINION

NELSON, Circuit Judge.

The question presented in this case — an action brought under the statute now known as the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et seq. — is what limitations period applies to the filing of suits for attorney fees incurred in administrative proceedings where the substantive issues were resolved in favor of the claimants. The Act itself contains no statute of limitations for such situations, and there is a circuit split as to the approach that should be followed in filling the gap.

Characterizing fee cases as ancillary to the dispute that was resolved administratively, the Seventh Circuit borrows the state law limitations period for judicial review of administrative agency decisions. See Powers v. Indiana Department of Education, Division of Special Education, 61 F.3d 552 (7th Cir.1995) (applying the 30-day limitations period prescribed by Indiana law for seeking judicial review of administrative decisions in special education matters); Reed v. Mokena School District No. 159, Will County, Illinois, 41 F.3d 1153 (7th Cir.1994) (applying the 120-day limitations period prescribed by Illinois law for suits seeking review of actions by school authorities).

The Eleventh Circuit has rejected the Seventh Circuit approach on the ground that IDEA creates an independent attorney fee claim cognizable only in the courts. See Zipperer v. School Board of Seminole County, Florida, 111 F.3d 847 (11th Cir.1997) (borrowing the four-year Florida statute of limitations applicable to claims based on a statutory liability). In the case at bar the district court, finding Zipperer persuasive, declined to use a 30-day limitations period prescribed by Kentucky law for appeals of administrative orders and instead applied the state’s five-year statute of limitations for actions “upon a liability created by statute, when no other time is fixed by the statute creating the liability.” See King v. Floyd County Board of Education, 5 F.Supp.2d 504, 506 (E.D.Ky.1998).

Upon de novo review, we conclude that the district court erred. We agree with the Seventh Circuit that the attorney fee case is ancillary to the administrative proceeding, and we shall reverse the judgment entered by the district court.

I

The plaintiffs, three special education students in the school system of Floyd County, Kentucky, challenged the Floyd County Board of Education under the IDEA when the board unilaterally changed their school placement for the year 1996-97. The placement change was made without the prior notice and consultation with the students’ “Admissions and Release Committee” required by the IDEA.

Following administrative due process hearings in which the plaintiffs were represented by counsel, a hearing officer found that the IDEA had been violated in all three cases. The Board of Education appealed to the Exceptional Children Appeals Board, Kentucky’s highest administrative review level for IDEA disputes. By orders dated January 17, 1997, the Appeals Board ruled against the Board of Education and in favor of the students. The Board of Education did not seek judicial review.

On November 4, 1997, more than nine months later, the plaintiffs filed separate suits against the Board of Education in the United States District Court for the Eastern District of Kentucky, seeking attorney fees pursuant to 20 U.S.C. § 1415(e)(4)(B). This provision — now codified at 20 U.S.C. § 1415(i)(3)(B) — permits the discretionary award of reasonable attorney fees “to the parents of a child with a disability who is the prevailing party.”¹ The district court consolidated the three actions pursuant to Fed.R.Civ.P. 42(a).

Conceding that each plaintiff was a “prevailing party,” the Board of Education moved for summary judgment on statute of limitations grounds. The board urged adoption of the 30-day statute of limitations prescribed under Ky.Rev.Stat. 13B. 140(1) for an appeal from an administrative order.² The district court denied the board’s motion, holding that the appropriate limitations period was the five years prescribed by Ky.Rev.Stat. 413.120(2).³

After reducing the amount of the plaintiffs’ request as excessive, the district court granted attorney fees and costs in the amount of $37,602.09. The Board of Education has appealed, and the plaintiffs have cross-appealed from the district court’s decision to award less than the total amount claimed.

“All final orders of an agency shall be subject to judicial review in accordance with the provisions of this chapter. A party shall institute an appeal by filing a petition in the Circuit Court of venue, as provided in the agency's enabling statutes, within thirty (30) days after the final order of the agency is mailed or delivered by personal service. ...”

We have no reason to doubt that the 30-day limitations period applies to state court petitions for review of final orders of the Exceptional Children Appeals Board.

II

“Because the [IDEA] contains no specific statute of limitations, the most appropriate [state] statute of limitations must be determined by the Court.” Janzen v. Knox County Bd. of Educ., 790 F.2d 484, 486 (6th Cir.1986), citing Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). “Generally, courts determine which state cause of action is most analogous to the federal cause of action. The state limitations period for that cause of action can be adopted if it is consistent with the policy of the. federal cause of action.” Id. (citations omitted). With respect to the IDEA, the selection of an appropriate state statute of limitations is done on a case-by-case basis “considering the posture of the case and the legal theories presented.” Id. at 487.

The federal cause of action for which a limitations period must be fashioned in the case now before us is created by statutory language that on its face might not seem applicable to the present facts at all. The reason this is so tells us something about the nature of the cause of action that has, in fact, been created.

A bit of background first. Under the IDEA, state and local education agencies that receive federal assistance are required to establish procedures under which administrative complaints may be filed with respect to, among other things, the educational placement of children with disabilities. See 20 U.S.C. § 1415(a)(6). Opportunities for impartial due process hearings and administrative appeals are to be provided, see § 1415(f) and (g), and in 20 U.S.C. § 1415(f)(2) — formerly § 1415(e)(2) — the Act provides that a party aggrieved by the findings and decision made under the prescribed administrative procedures “shall have the right to bring a [state or federal] civil action with respect to the [administrative] complaint....” Standing alone, this provision would not seem to confer a right to sue on the students or their parents here, because they were the prevailing parties in the administrative proceedings — they were not, in the normal sense of the words of the statute, “aggrieved by the findings and decision .... ”

But in 1986, in the wake of a Supreme Court decision (Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984)) which held that the right to sue did not include a right to recover attorney fees, Congress enacted the Handicapped Children’s Protection Act, P.L. 99-372, which amended the IDEA by adding a provision codified at 20 U.S.C. § 1415(e)(4)(B). As now recodified in § 1415(i)(3)(B), this provision reads, in its entirety, as follows:

“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.”

The only part of § 1415 that authorizes the bringing of an “action” is § 1415(i)(2)(A), which, as we have seen, does not appear to authorize the bringing of an action by the side that prevailed in the administrative proceeding. The 1986 statute also used the words “or proceeding,” however, and the Supreme Court has held that similar language in the Civil Rights Act of 1964 authorizes fee awards for legal work done for the prevailing side in state administrative proceedings. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980). The legislative history of the fee award amendment to the IDEA makes express reference to Gaslight, see, e.g., H.R. Rep. No. 99-296, 99th Cong., 1st Sess. 5 (1985), and in light of this legislative history we have held that the amended version of the IDEA is broad enough to authorize court suits for the recovery of legal fees incurred by parents who prevailed at the administrative level. See Eggers v. Bullitt County School District, 854 F.2d 892 (6th Cir.1988). A number of other circuits have reached the same conclusion. See, e.g., Moore v. District of Columbia, 907 F.2d 165 (D.C.Cir.1990), and the cases cited therein at 166.

Administrative agencies do not typically have authority to award attorney fees, and Kentucky’s administrative arrangements, as the parties in the case at bar agree, do not provide for fee awards. In this situation, we take it, the logic of Eggers is that the 1986 fee award amendment to the IDEA had the effect of making a parent who prevailed in the administrative proceedings with the assistance of counsel an “aggrieved” party, for purposes of 20 U.S.C. § 1415(i)(2), insofar as there was no award of attorney fees. As an aggrieved party, the parent is authorized to go to court to seek reasonable attorney fees. And because the only thing that gives such a parent an entree to the court is the failure to recover fees incurred in the administrative proceeding, the statutory authorization for the court to award attorney fees “[i]n any action or proceeding brought under this section” must, in this situation, be an authorization for the court to award attorney fees in the administrative proceeding itself.

The forum shifts, to be sure, when the parent goes into court, but the statute seems to treat the award of attorney fees as another phase of the administrative proceeding. If, as the wording of the statute suggests, the court may award the prevailing parent a fee “[i]n” the administrative proceeding, we think that the Seventh Circuit was correct in concluding that the fee claim is “ancillary to the underlying education dispute.” Powers, 61 F.3d at 556.⁴

It is true that there would be no claim for attorney fees were it not for the statute. But where the statute creating the claim makes the claim part and parcel of the administrative proceeding, it seems to us that the statute makes the claim analogous to a cause of action for judicial review of the proceeding to which the claim is appended. That analogy is closer, as we see it, than the analogy involving Kentucky’s general five-year statute of limitations for actions on statutory liabilities not subject to some other limitations period. It is difficult for us to conceive of a legislature intentionally authorizing the filing of a fee application up to five years after termination of the proceeding to which the application relates; it seems most unlikely, in other words, that the five-year statute was designed for ancillary proceedings of the sort in question here, as opposed to claims that can properly be characterized as independent.

We see nothing to the contrary in Jan-zen, which was not an attorney fee case. There the family of a child with special educational needs bypassed the administrative process altogether and went directly to court in an effort to obtain reimbursement of costs incurred in educating the child privately. In holding that the reimbursement claim was barred by a three-year limitations period borrowed from a Tennessee statute of limitations applicable to suits for services performed but not paid for, we rejected an argument that the claim was analogous to one subject to a 60-day limitations period prescribed by Tennessee law for appeals from agency rulings. See Janzen, 790 F.2d at 487. There was no such analogy we said, “because the Janzens had no ruling of any kind from which to appeal.” Id. “Had a due process hearing been held,” on the other hand, the Janzen panel acknowledged that “the posture of the situation would have been more akin to an appeal from an agency ruling.” Id.

The Janzen panel did go on to suggest, in dicta, that the 60-day period would be inapplicable to an appeal on the merits even if an administrative proceeding had been conducted first. Id. at 487-88. But in a subsequent education cost reimbursement case where administrative remedies had been invoked prior to the lawsuit, Cleveland Heights-University Heights City School District v. Boss, 144 F.3d 391, 396-97 (6th Cir.1998), we held that the appropriate statute of limitations to borrow for the appeal was a 45-day Ohio statute, Ohio Rev.Code § 3323.05(F), that governed appeals to the state courts from final orders of reviewing officers appointed by the state board of education.

Both the Janzen and Cleveland Heights-University Heights panels attached significance to the standard of review applicable under state law where administrative orders are appealed to the courts. The state law standard of review may be relevant to the selection of an appropriate limitations period if the order appealed from is the direct product of an evidentiary hearing. But in the situation before us here, as we have explained, Congress has authorized the courts to award attorney fees in administrative proceedings where there is typically no authority at all for fee applications to be entertained at the administrative level. The content of a standard of review that might have been applicable under other circumstances thus seems irrelevant to the task at hand here.

It remains to be considered whether adoption of a 30-day limitations period for the matter before us would be “inconsistent with federal law or policy....” See Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). We see no inconsistency.

If in some other context the parents were not represented by counsel, such a short limitations period might conflict with the IDEA goal of parental participation in the educational process. But in the present context, as the Seventh Circuit pointed out in Powers, the lawyer has already been hired — so in adopting a 30-day deadline for asserting a claim for the lawyer’s fees, “we do not run the risk of hurting vulnerable unrepresented parents.” Powers, 61 F.3d at 558. The Powers court found 30 days to be “acceptable,” id., and we think it is acceptable too. We are strengthened in this view by the thought that if the plaintiffs had not prevailed on the underlying educational issues until the judicial review stage, they would have had only 14 days after the entry of judgment within which to move for attorney fees. See Rule 54(d)(2)(B), Fed.R.Civ.P. Thirty days does not seem too stingy by comparison, and five years seems far too generous.

The judgment entered by the district court is REVERSED, and the case is REMANDED for entry of judgment for the defendant. The plaintiffs’ cross-appeal is dismissed as moot.

1 . Each of the three students brought suit through a parent as next friend. Technically, it appears, the parents should have sued in their own names, but neither the Board of Education nor the district court made an issue of this.

2 . K.R.S. 13B.140(1) provides in part as follows:

3 .K.R.S. 413.120 provides in part as follows:

"The following actions shall be commenced within five (5) years after the cause of action accrued:

(2)An action upon a liability created by statute, when no other time is fixed by the statute creating the liability....”

4 . Pointing to a provision now codified at § 1415(i)(3)(A), which gives the federal district court jurisdiction of actions brought under § 1415 without regard to the amount in controversy, the plaintiffs argue that § 1415(i)(3)(A) and (B) together create a cause of action — enforceable solely in federal court — separate and distinct from the cause of action created by § 1415(i)(2). There is support for this view in the case law — see, e.g., Zipperer, 111 F.3d at 851 ("the IDEA provides two distinguishable causes of action”) — but only § 1415(i)(2) purports to confer a right to sue, and the language conferring jurisdiction without regard to the amount in controversy was part of the IDEA well before the 1986 amendment. See J.H.R. v. Board of Education of the Township of East Brunswick, 308 N.J.Super. 100, 705 A.2d 766, 775-76 (1998), holding that actions of the sort at issue here may be brought in either state or federal court under what is now § 1415(i)(2).