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