Hebert v. MANCHESTER, NH, SCHOOL DIST.

833 F. Supp. 80

Scott HEBERT, By and Through His Mother and Next Friend, Laurette HEBERT, and Laurette Hebert v. MANCHESTER, NEW HAMPSHIRE, SCHOOL DISTRICT, James Vitagliano, Individually and In His Capacity As Director of Special Services for the Manchester, New Hampshire, School District, and Effie Malley, In Her Official Capacity as Director, New Hampshire Division for Children and Youth Services.

Civ. No. 90-245-M.

United States District Court, D. New Hampshire.

September 29, 1993.

Ronald K. Lospennato, Concord, NH, for plaintiffs.

Nancy J. Smith, Concord, NH, Dean B. Eggert, Manchester, NH, for defendants.

ORDER

McAULIFFE, District Judge.

Scott Hebert and his mother, Mrs. Laurette Hebert, challenge an April 1990 decision by a New Hampshire Department of Education hearings officer. The hearings officer determined that Scott's 1989-90 Individual Education Plan ("IEP") satisfied the requirements of both the Individuals with Disabilities Education Act¹ ("IDEA"), 20 U.S.C.A. § 1400, et seq., and the New Hampshire Standards for the Education of Handicapped Students, N.H. Admin. Rules, Ed. 1101.01, et seq. This court (Stahl, J.) previously dismissed their IDEA appeal as time barred (Order, June 11, 1992), but other claims remain, based on section 504 of the Rehabilitation Act, 29 U.S.C. § 794, 42 U.S.C. § 1983, and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Jurisdiction is asserted under 20 U.S.C.A. § 1415(e)(2), and 28 U.S.C. §§ 1331 and 1343. Before the court are plaintiffs' motion to reconsider and amend orders of June 11, 1992, and October 2, 1992, dismissing the IDEA appeal, as well as defendants' motion for summary judgment.

I. Background

The right to a free and appropriate education under IDEA is "tailored to the needs of the handicapped child by means of an `individualized education plan' (IEP)." Hendrick Hudson Cent. School Dist. v. Rowley, 458 U.S. 176, 181, 102 S.Ct. 3034, 3038, 73 L.Ed.2d 690 (1982) (citing 20 U.S.C. § 1410(a)19). An IEP is a

written statement for each handicapped child developed in any meeting by a representative of the local educational agency or an intermediate educational level unit who shall be qualified to provide, or supervise provision of, specially designed instruction to meet the unique needs of handicapped children, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include —

(A) a statement of the present levels of educational performance of such child,

(B) a statement of annual goals, including short-term instructional objectives,

(C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs,

(D) the projected date for initiation and anticipated duration of such services, and

(E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.

20 U.S.C.A. § 1410(19).

Scott Hebert has been considered handicapped by school officials throughout his educational career. Because Scott's 1989-90 IEP was not acceptable to his family they sought to revise it, to account for his alleged educational need for residential placement. The school district declined to revise it or to assume financial responsibility for Scott's residential placement. The Heberts contested the district's refusal, as well as various alleged procedural violations related to Scott's program for school years 1987-88, 1988-89 and 1989-90. Suit was brought in this court after the Heberts pursued but failed to obtain relief at the state administrative level.

It is sufficient for this ruling to simply note that since January of 1988, Scott has been placed in a number of residential facilities to deal with his uncontrollable behaviors at home, his potential danger to himself and his family, his non-attendance at school, and his substance and alcohol abuse problems. He has resided at the following facilities: Spaulding Youth Center; Philbrook Hospital; Seaborne Hospital; and Odyssey House.

The state hearings officer determined that financial responsibility for Scott's residential placements remained with Mrs. Hebert, because they were necessary due to Scott's repeated truancy and substance abuse, rather than to meet his legitimate educational needs. Accordingly, the hearings officer found that the Manchester School District had not deprived Scott of his right to a free and appropriate education under IDEA. As required, the hearings officer concluded the administrative process by advising the Heberts of their right to appeal her decision; she did not, however, inform them of the specific time limitation applicable to any appeal they might wish to take.

II. Motion to Reconsider Dismissal On Statute of Limitations Grounds

By Order dated June 11, 1992, this court (Stahl, J.) granted defendants' motion to dismiss plaintiffs' appeal as time barred. The court applied the thirty day limitations period adopted in Bow School District v. Quentin W., 750 F.Supp. 546, 550 (D.N.H.1990) to this case.² Order, June 11, 1992, at 6.

New Hampshire's legislature had enacted a new statute of limitations facially applicable to IDEA appeals before this appeal was dismissed, but it was not effective until June 30, 1992.³ That statute extended the time in which an IDEA appeal must be filed to 120 days, from receipt of a final administrative decision. Given the new legislation, plaintiffs filed a motion to reconsider the court's dismissal. By order dated October 2, 1992, the court (Stahl, J.)⁴ denied plaintiffs' motion and declined to retroactively borrow the newly effective statute in order to revive the previously barred appeal.

Upon reassignment of this case, the court scheduled defendants' pending motion for summary judgment for oral argument. At oral argument the troublesome statute of limitations issue was again revisited and, after discussion, plaintiff was invited to file a motion to reconsider and brief the court's earlier application of the borrowed 30 day limitations period.

The record reveals the following uncontested facts. The hearings officer issued her decision in this matter on April 19, 1990. Forty-two days later, on May 31, 1990, the Heberts filed an appeal challenging that decision. Thirty-six days had elapsed between the date plaintiffs' counsel received notice of the decision and the date he filed the complaint (appeal). To the extent the complaint sought review under IDEA, it was untimely under the 30 day rule, whether measured from the issuance or receipt of the decision.

Having carefully reconsidered the issue, the court has determined that it is obligated to affirm its earlier retroactive application of the borrowed thirty day limitations period. See James B. Beam Distilling Co. v. Georgia, 501 U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991); Amann v. Stow, 991 F.2d 929 (1st Cir.1993); Bow School District v. Quentin W., 750 F.Supp. 546, 549 (D.N.H. 1990). However, though the 30 day period applies, the court is also satisfied that the circumstances of this case warrant equitable tolling of that limitations period, at least for a reasonable period of time. For the reasons set forth below, plaintiffs' motion for reconsideration is granted, and the IDEA appeal is reinstated.

A. Applicable Statute of Limitations

The Court of Appeals' recent decision in Amann v. Stow, 991 F.2d 929 (1st Cir. 1993), arguably established a new rule in this circuit for statute of limitations borrowing relative to IDEA appeals. Under Amann, courts in this circuit must borrow the limitations period (generally 30 days) governing appeals from state administrative agency decisions, assuming those limitations are also consistent with the federal policies and goals underlying IDEA. Amann, 991 F.2d at 931-933. Affirming the choice of state administrative appeal deadlines, the court noted that "their relatively brief limitations periods are consistent with the IDEA's goal of prompt resolution of disputes over the educational placement of learning-disabled children." Id. at 931.

The decisions in this district, (before the effective date of N.H. R.S.A. § 186-C:16-b), have been diverse both in their approach and in their application of limitations periods to IDEA appeals. Compare Edward B. v. Brunelle, 662 F.Supp. 1025 (D.N.H.1986) (Loughlin, J.) (64 day delay between issuance of hearings officer's decision and filing of appeal held "not unreasonable" — appeal allowed); Mark E. v. Northland School District, No. 84-156-L, slip op. (D.N.H. November 25, 1986) (declining to apply 30-day limitations period of N.H.R.S.A. § 541:6); with I.D. v. Westmoreland School District, 788 F.Supp. 634, 638 (D.N.H.1992) (applying state's 30-day administrative appeal limitation); G.D. v. Westmoreland School District, 783 F.Supp. 1532, 1538 (D.N.H.1992) (Devine, J.) (same); Bow School District v. Quentin W., 750 F.Supp. 546 (D.N.H.1990) (Stahl, J.) (same). Amann plainly validates this court's prior decisions applying New Hampshire's 30-day limitation on administrative appeals⁵ and dispels any confusion in this district regarding the correct limitation period applicable to IDEA appeals, or at least to those filed before June 30, 1992. See n. 3, supra.

The "new rule" of Amann is retroactively applicable to this case, and every other case not finally adjudicated. In Harper v. Virginia Dep't of Taxation, ___ U.S. ___, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), the Supreme Court reaffirmed its earlier disinclination, expressed in James B. Beam Distilling Co. v. Georgia, 501 U.S. ___, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (Souter, J.), to permit selective prospectivity of newly announced rules of law under the Chevron Oil⁶ test:

Regardless of how Chevron Oil is characterized, our decision today makes it clear that "`the Chevron Oil test cannot

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