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MURPHY v. GIRARD SCHOOL DIST.

June 11, 1999

CRAIG AND NANCY MURPHY IN THEIR OWN RIGHT AND AS PARENTS OF BETHANY MURPHY, PETITIONERS,
v.
THE GIRARD SCHOOL DISTRICT, RESPONDENT.



The opinion of the court was delivered by: McLAUGHLIN, District Judge.

MEMORANDUM OPINION

Petitioners, Craig and Nancy Murphy, filed a Petition for Attorneys Fees*fn1 pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B), ("IDEA").*fn2 The Respondent, Girard School District, opposes the Petition and argues that the Petitioners are not a "prevailing party" under the Act, and that the Petition is barred by the statute of limitations.

I. BACKGROUND*fn3

Bethany was a middle school student in the Girard School District. In the Spring of 1995, the Petitioners requested that she be evaluated to determine whether she needed special education services. This evaluation was conducted by the District, but the Petitioners disagreed with the findings and requested the District to provide an independent evaluation. This request was denied by the District. Thereafter, the District initiated a due process hearing regarding Bethany's educational placement. Petitioners also initiated a due process hearing to determine Bethany's eligibility for special education services. Prior to the hearing, Petitioners had Bethany evaluated by various clinicians at different locations at their own expense.

The due process hearing was held over several sessions beginning on February 20, 1996 and ending April 2, 1996. The hearing officer concluded that Bethany was not exceptional and in need of special education, and denied the Petitioners request for reimbursement of the expenses incurred for the evaluations. The Petitioners filed exceptions to the hearing officer's decision. The Special Education Due Process Appeals Panel of the Commonwealth of Pennsylvania*fn4 held that Bethany was not gifted but did have a learning disability. The panel also held that Bethany did not need special education services, provided the District continued to make appropriate accommodations. The panel additionally ordered reimbursement for the independent evaluations.

Both parties appealed the panel's decision to the Commonwealth Court of Pennsylvania. By order dated May 19, 1997, the Commonwealth Court held that Bethany did have a learning disability, but no special education placement was warranted. The court also held that although the criteria for reimbursement was only partially applicable to the facts of the case, the most "equitable resolution" would be to reimburse the Petitioners for one of the evaluations.

On June 11, 1999, the Petitioners filed their Petition for Attorneys Fees in this Court, seeking an award of attorneys fees in the amount of $20,074.05, and costs in the amount of $256.96.

II. DISCUSSION

A. Statute of limitations

Prior to reaching the merits of the claim for fees, we must determine whether the action is barred by the statute of limitations. IDEA does not establish a statute of limitations for an action seeking either judicial review of an administrative proceeding or for an application seeking attorneys' fees. Zipperer v. School Board of Seminole County, Florida, 111 F.3d 847 (11th Cir. 1997). "[W]hen Congress has failed to provide a statute of limitations for a federal cause of action, a court `borrows' or `absorbs' the local time limitation most analogous to the case at hand." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355, 111 S.Ct. 2773, 115 L.Ed.2d 321 (1991) (citations omitted).

The issue of which statute of limitations should be applied to an action for attorneys fees pursuant to IDEA has not been decided by the Third Circuit. The Third Circuit has however, examined the limitations issue in the context of an action seeking review of an administrative decision pursuant to 20 U.S.C. § 1415(e)(2), as amended, 20 U.S.C. § 1415(i)(2)(A).*fn5 In Tokarcik v. Forest Hills School District, 665 F.2d 443 (3rd Cir. 1981), cert. denied sub nom., Scanlon v. Tokarcik, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982), the parents instituted an action to obtain catheterization services for their daughter ninety days after the state agency rendered its decision on the merits. The main issue on appeal was whether the action was timely filed. In rejecting the thirty day limitations period that governs appeals from administrative decisions, the court found persuasive the reasoning set forth in Monahan v. State of Nebraska, 491 F. Supp. 1074 (D.Neb. 1980), aff'd in part, rev'd and remanded in part on other grounds, 645 F.2d 592 (8th Cir. 1981). Specifically, the court recognized that the standard of judicial review is more akin to a de novo review as opposed to a limited examination of the administrative record. As a result, different time considerations, accommodating the needs of the parties to investigate and prepare, govern the limitations period for an action brought under the statute. Tokarcik, 665 F.2d at 451. Secondly, a limited appeals period would restrict the range of issues a reviewing court could consider and would effectively dilute the independent position of the district courts. Id. Finally, the thirty day limitations period would frustrate the statutory policy of cooperative parental and school involvement in placement determinations. Tokarcik, 665 F.2d at 452. The court reasoned that the thirty day limitations period is simply "incompatible" with too many objectives of the Act. Id. Because the parents action was instituted ninety days after the agency decision, the court did not decide whether Pennsylvania's two-year or six-year statute should apply. In dicta however, the court stated "[f]or purposes of cases brought in district courts situated in Pennsylvania it would appear that the two-year state statute of limitations, . . . is an appropriate referent." Tokarcik, 665 F.2d at 454.

The Third Circuit has also addressed the limitations issue in a different context under IDEA in the case of Bernardsville Board of Education v. J.H., 42 F.3d 149 (3rd Cir. 1994). In Bernardsville, the issue was whether the parents timely requested a due process hearing in order to recover reimbursement for tuition and expenses for J.H.'s private education. The court adopted a "reasonable time" standard for initiation of review proceedings and stated "[w]e think more that two years, indeed, more than one year, without mitigating excuse, is an unreasonable delay." Bernardsville, 42 F.3d at 158. The court further stated:

  "[G]iven the Act's lack of specificity on the
  question of timeliness and the nature of the issue
  here, a balancing of the equities is unavoidable. We
  resort to the standard of reasonableness under the
  circumstances, and a consideration of mitigating
  circumstances for any delay in the initiation of
  review proceedings which might otherwise be deemed
  unreasonable."

Bernardsville, 42 F.3d at 158, n. 14.

At this point, a more in-depth analysis of the district court's opinion in Bernardsville is appropriate. In Bernardsville Board of Education v. J.H., 817 F. Supp. 14 (D.N.J. 1993), aff'd in part, vacated in part, 42 F.3d 149 (3rd Cir. 1994), two issues were before the district court: 1) the appropriate time period in which to request a due process hearing; and 2) the appropriate limitations period for filing an action in court seeking review of an administrative decision pursuant to 20 U.S.C. § 1415(e)(2). The Board moved for summary judgment on the first issue, that being whether the parents timely requested a due process hearing, and in denying the motion, the court declined to impose the 90-day time limit for disputing an individualized educational program (IEP) to a request for a due process hearing. Bernardsville, 817 F. Supp. at 19. As to the second issue, the parents moved for summary judgment on the ground that the Board's action filed in federal court seeking review of an administrative decision under 20 U.S.C. § 1415(e)(2) was untimely. Following the opinion in Tokarcik v. Forest Hills School District, 665 F.2d 443 (3rd Cir. 1981), cert. denied sub nom., Scanlon v. Tokarcik, 458 U.S. 1121, 102 S.Ct. 3508, 73 L.Ed.2d 1383 (1982), the court denied the parents motion and held that the two-year or six-year limitations period applied. Bernardsville, 817 F. Supp. at 18. Once the district court ruled on the merits, the Board then appealed the matter to the Third Circuit. Among other issues, the Board appealed the district court's denial of its motion for summary judgment. Bernardsville, 42 F.3d at 156. Apparently, the parents did not cross-appeal the denial of their motion for summary judgment on the issue relating to the statute of limitations for filing an action seeking review of an administrative decision under 20 U.S.C. § 1415(e)(2). Therefore, the only limitations issue before the Third Circuit on appeal was whether the parents were timely in requesting a due process hearing. As to this issue, the court adopted the "reasonable time" standard. Bernardsville, 42 F.3d at 158.

The court in Bernardsville therefore did not rule on the limitations issue as it related to filing an action under 20 U.S.C. § 1415(e)(2), and only addressed limitations in the context of requesting a due process hearing. Thus the Third Circuit's opinions in Bernardsville and Tokarcik addressed two different issues. However, neither opinion addressed the appropriate statute of limitations to be applied in the context of an application for attorneys' fees.

One Pennsylvania district court since Tokarcik and Bernardsville has addressed the limitations issue in the context of an application for attorneys fees, but did not decide which period applied. See Ivanlee J. v. Wilson Area School District, No. 97-683, 1997 WL 164272 (E.D.Pa. April 3, 1997). Citing Tokarcik, the court noted that the proper limitations period "is at least two years and may be as long as six years." Ivanlee, 1997 WL 164272 at *2. The court did not discuss whether the reasoning set forth in Tokarcik is applicable in the context of an application for attorneys' fees.

A New Jersey district court has addressed the issue and examined both the Tokarcik and Bernardsville opinions. In B.K v. Toms River Board of Education, 998 F. Supp. 462 (D.N.J. 1998), the parent argued that the court should apply the Tokarcik decision to the fee application and find that it is governed by the New Jersey two-year statute of limitations. The Board requested the court apply the 45-day limitations period applicable to New Jersey administrative appeals. In analyzing Tokarcik, the court found it inapposite, since Tokarcik only addressed the applicable statute of limitations in the context of an action brought pursuant to § 1415(e)(2). B.K., 998 F. Supp. at 470. Turning to other jurisdictions for guidance, the court was persuaded by the reasoning of the Eleventh Circuit in Zipperer v. School Board of Seminole County, 111 F.3d 847 (11th Cir. 1997) in adopting a longer limitations period in the context of a fee application. The Zipperer court found that the adoption of a longer statute of limitations in a fee context was not inconsistent with the policies of IDEA. The court reasoned that the resolution of claims for attorneys' fees is less urgent and is more likely to be resolved by the attorneys' own interest in prompt payment rather than by a short limitations period. Zipperer, 111 F.3d at 851. The B.K. court reasoned that a longer limitations period would allow enough time for the parties to attempt to agree on the issue, and would encourage parental involvement. B.K. 998 F. Supp. at 471.

The court then examined the Third Circuit's opinion in Bernardsville. The court recognized that the Third Circuit reached its conclusion concerning the reasonableness of the time period because of the "unique considerations" presented by a claim for retroactive reimbursement based upon the inappropriateness of the school district's proposed IEP. B.K., 998 F. Supp. at 472. The court adopted the Third Circuit's balancing of the equities approach, and determined that the parent's application for attorneys' fees was made within a reasonable time since it was made within two years of the entry of the settlement between the parties. B.K., 998 F. Supp. at 473.

While we agree with the reasoning in B.K. favoring a longer limitations period, we are of the opinion that Tokarcik provides greater guidance in the context of a fee application since Tokarcik addressed the limitations issue in the context of a post-administrative action, while Bernardsville, addressed the issue in the context of the appropriate time frame in which to initiate the administrative process prior to filing a lawsuit. Given our conclusion that Tokarcik is more closely aligned to the facts of this case, we do not believe it is necessary to engage in a "balancing of the equities" approach, since Tokarcik did not suggest such approach was necessary in a post-administrative situation.

The court in Tokarcik did not specifically decide the appropriate limitations period, but strongly suggested it would be at least two years. Tokarcik, 665 F.2d at 454. We too, however, need not decide this issue in order to dispose of the instant Petition. Following the lead of Tokarcik, we conclude only that the limitations period is at least two years. The Commonwealth Court order is dated May 19, 1997 and became final on June 18, 1997. See McCartney C. v. Herrin Community Unit School District No.4, 21 F.3d 173, 175 (7th Cir. 1994) (decision becomes final upon exhaustion of all judicial remedies and suit for fees would be premature until then).*fn6 The ...


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