
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-2006                            PROVIDENCE SCHOOL DEPARTMENT,                                 Plaintiff-Appellant,                                          v.                                   ANA C., a minor,                                 Defendant-Appellee.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The  opinion  of  this Court  issued  on  March  3, 1997  is          corrected as follows:               On  the  cover  sheet,  line 16:  substitute  "Pollock"  for          "Pollack" and substitute "Incorporated" for "Inc."                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2006                            PROVIDENCE SCHOOL DEPARTMENT,                                 Plaintiff-Appellant,                                          v.                                   ANA C., a minor,                                 Defendant-Appellee.                                 ____________________                    APPEAL FROM THE UNTIED STATES DISTRICT COURT                         FOR THE DISTRICT COURT OF RHODE ISLAND                    [Hon. Raymond J. Pettine, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                        Boudin, Cyr, and Lynch, Circuit Judges.                                                ______________                                 ____________________            David A.  Wollin, with whom Patricia  K. Rocha, R. Bart Totten and            ________________            __________________  ______________        Adler Pollock & Sheehan Incorporated were on brief for appellant.        ____________________________________            Martha  McVicker,  with  whom  the  Rhode  Island  Protection  and            ________________                    ______________________________        Advocacy System was on brief for appellee.        _______________                                 ____________________                                    March 3, 1997                                 __________________                      LYNCH,  Circuit  Judge.       An  impartial  review                      LYNCH,  Circuit  Judge.                              ______________            officer,  acting  under  the  Individuals  with  Disabilities            Education  Act ("IDEA"), 20 U.S.C.   1400 et seq., found that                                                      __ ____            the Providence  School Department owed benefits  to a special            needs  student, Ana C., for  parts of the  years 1990 through            1992.   The  School  Department sought  review in  the United            States District  Court within  thirty days of  receiving that            decision, consistent  with the time periods  contained in the            state  Administrative Procedures Act  ("APA").   The district            court dismissed  the claim as untimely,  finding that federal            law borrowed a different  state limitations period, one which            uses  issuance of a decision,  not receipt of  a decision, to            trigger the thirty day period.1  We reverse the dismissal.                                           I.                      The  essential facts are not in dispute.  Ana C., a            mentally  retarded  minor,  is  entitled  to receive  special            educational  services   under  the   IDEA.    Ana   lived  in            Providence, Rhode  Island from August 1989  to November 1992,            and  she  was  entitled  to  230 days  of  special  education            services  per year under  the Rhode Island  Board of Regents'            Regulations Governing the Special  Education of Children with            Disabilities (the "Regulations").                                              ____________________            1.  Because the enactment of the IDEA preceded the enactment            of 28 U.S.C.   1658, the IDEA is unaffected by that            establishment of a four year statute of limitations for all            federal causes of action lacking a specific limitations            period.  Id.                     ___                                         -2-                                          2                      The  School  Department  did  not provide  Ana  the            summer  educational services  she sought  for the  summers of            1990, 1991, and  a portion  of 1992.   The School  Department            conceded  in October of 1992 that Ana was entitled to receive            a  total of 150 days of special education that the Department            had previously  failed  to  provide.   But  when  the  School            Department  learned that Ana and her father had moved to West            Chester,  Pennsylvania  in  November  1992, it  reversed  its            position, saying that Ana  could not receive the 150  days as            long as she resided outside of Rhode Island.                       Ana sought  a  hearing.   On  August 30,  1995,  an            impartial hearing officer for  the Rhode Island Department of            Education  ("RIDE") decided  that, because  Ana lived  out of            state, she could  not receive the 150 days.   The officer was            not an employee  of the school  district or a  member of  the            school committee,  in accordance with 20  U.S.C.   1415(b)(2)            and section 7 of the Regulations.                       Ana,  then  age   fourteen,  appealed  the  hearing            officer's  decision  pursuant  to  20 U.S.C.     1415(c)  and            section  9 of the  Regulations.  An  impartial review officer            reversed.  As required by section 10 of the Regulations, that            officer was not an employee of the Rhode Island Department of            Education or a member  of the Rhode Island Board  of Regents.            His   decision,  dated   January   23,  1996,   awarded   Ana                                         -3-                                          3            compensation  for  150 days  of  special  education from  the            Department, despite her Pennsylvania residency.                       The review officer's decision was forwarded to  the            Office  of  Special Needs  of the  RIDE  and was  received on            January  26, 1996.  The  RIDE then forwarded  the decision to            counsel for Ana  and to  the School Department.   Though  the            precise  date  of  the  forwarding  is  unclear,  the  School            Department  did not  receive the  decision until  February 7,            1996.                          The  Providence School  Department, pursuant  to 20            U.S.C.     1415(e)(2), filed  its  complaint challenging  the            final agency decision in the United States District Court for            the District  of Rhode  Island on  March 4, 1996.   Ana  then            moved  to dismiss  the complaint  on the  ground that  it was            filed forty-one  days after  the state review  officer issued            his decision.   This,  Ana argued,  exceeded the thirty  days            from issuance allowed by law and was thus untimely.                        Accepting the report and recommendation of a United            States  Magistrate Judge,  the district  court  granted Ana's            motion  and  dismissed  the  School  Department's  complaint.            Although section  1415(e)(2) does  not specify  a limitations            period,  the Supreme  Court  has directed  federal courts  to            "apply the  most  closely analogous  statute  of  limitations            under  state  law,"   DelCostello  v.  International Bhd.  of                                  ___________      ______________________            Teamsters, 462  U.S. 151, 158 (1983),  so long as "it  is not            _________                                         -4-                                          4            inconsistent  with federal law or policy to do so." Wilson v.                                                                ______            Garcia,  471 U.S. 261,  266-67 (1985).   The magistrate judge            ______            had found  that the most  closely analogous statute  was R.I.            Gen.  Laws    16-39-3.1  and  therefore that  the  thirty day            limitations period  had begun  to run  when the  decision was            issued on January 23, 1996.2                        The  School  Department appeals,  arguing  that the            most analogous state limitations  statute is the Rhode Island            APA,  R.I. Gen. Laws    42-35-15, under which  the thirty day            limitations period begins  to run  from the  date of  receipt            rather than the date  of issuance.  See Bayview  Towing, Inc.                                                ___ _____________________            v.  Stevenson, 676  A.2d  325, 328  (R.I.  1996) (thirty  day                _________            limitations   period  under  section  42-35-15  triggered  by            receipt of the final agency  decision).  Under that standard,            the  Department  argues,  its  appeal was  timely  filed  and            improperly dismissed.                                         II.                      This case presents a pure issue of law.  Our review            of a grant of  a motion to dismiss  is de novo.   Glassman v.                                                   __ ____    ________            Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).              ____________________                      In  enacting the  IDEA, Congress  contemplated that            there would be judicial review of the decisions of the review                                            ____________________            2  The Department did not argue that the "issuance" of the            decision was the date it was sent to the parties, rather than            the date the review officer submitted it to the state agency            to send to the parties.  Accordingly, we do not consider that            point.                                         -5-                                          5            officer,  but did not set a statutory time limit during which            the petition  for judicial  review must be  brought.   Courts            have  looked to  the most  analogous statutes  of limitations            from  the laws  of the pertinent  state, provided  that those            laws do  not conflict with  the federal policies  inherent in            the statute.   See Wilson, 471  U.S. at 266-67.   In Amann v.                           ___ ______                            _____            Town  of Stow, 991 F.2d 929, 931 (1st Cir. 1993)(per curiam),            _____________            this  court, in a case  involving a special  needs child from            Massachusetts,  held that the  Massachusetts APA contains the            "most  analogous"  state law  cause  of action  to  the civil            action authorized by  section 1415(e)(2).  In so  doing, this            court found that "courts reviewing agency decisions under the            IDEA will  rely primarily  on the administrative  record, and            will scrutinize  agency action for procedural  regularity and            substantive  validity, but  will not  impos[e] their  view of            preferable . . . methods on  the  state agency.    Thus,  the            character  of  the  hearing  . .  .  under  the Massachusetts            statute  is essentially one of review."  Id. at 932 (internal                                                     ___            quotation marks and citations omitted).  The Amann court also                                                         _____            considered whether the short  limitations period (thirty days            from receipt)  was inconsistent with  the goals of  the IDEA,            and concluded that it was not.  Id.                                            ___                      For  similar reasons, the  Rhode Island APA governs            the limitations period for judicial review in this case.  The            Rhode Island APA, like the Massachusetts APA, confines review                                         -6-                                          6            to   the  record   or,   in  cases   of  alleged   procedural            irregularity, to  proof  in court  of  those  irregularities.            R.I. Gen. Laws   42-35-15(f).  The reviewing court "shall not            substitute its judgment for  that of the agency as  to weight            of  the evidence on questions  of fact."   Id.   42-35-15(g).                                                       ___            The court  "may reverse or  modify the  [agency] decision  if            substantial rights of the  appellant have been prejudiced" in            a  manner consistent with  the usual grounds  for reversal on            judicial  review  of  an administrative  agency.    Id.   The                                                                ___            character of the hearings under both the Rhode Island APA and            the IDEA is essentially one of review.  Cf. Board of Educ. v.                                                    ___ ______________            Rowley, 458 U.S. 176, 207-09 (1982); Burlington v. Department            ______                               __________    __________            of Educ., 736 F.2d 773, 791 (1st Cir. 1984).            ________                      The  district court  focused on  the provisions  of            R.I.  Gen. Laws    16-39-3.1.   By  its  literal terms,  that            section  is not a judicial  review provision for an aggrieved            party  but  a  finality  and enforcement  provision  for  the            prevailing party where no review was available or was sought:                      Enforcement of final decisions --                       All final decisions  made after a hearing                      by  the  commissioner  of elementary  and                      secondary  education  or  the   board  of                      regents  for   elementary  and  secondary                      education,  and which are  not subject to                      further   judicial   or    administrative                      review, shall be enforceable  by mandamus                      or any other suitable civil action in the                      superior court for  Providence County  at                      the request of any interested party.  All                      such  decisions  of the  commissioner and                      board shall become  final if judicial  or                      further  administrative   review  is  not                                         -7-                                          7                      properly sought within  thirty (30)  days                      of their issuance.            Id.   16-39-3.1.              ___                      Even assuming that section  16-39-3.1 is a judicial            review provision, this section of Rhode Island law is not the            most  analogous to the federal scheme.  The decision at issue            was made  by an impartial  review officer (not by  one of the            officials listed).   See  Regulations   10  (impartial review                                 ___            officer may not  be the  Commissioner or an  employee of  the            Rhode  Island   Department   of  Elementary   and   Secondary            Education); see  also 20  U.S.C.   1415(b)(2)  (impartial due                        ___  ____            process hearing officer may  not be an employee of  the state            educational  agency).    The  decision was  also  subject  to            further judicial or administrative review.                      As  a  matter of  federal  law, the  administrative            decision  here is more  similar to those  governed by section            16-39-4, which expressly states  that any aggrieved party may            obtain judicial review  "as provided in  chapter 35 of  title            42."   Chapter  35  of  title 42  is  the Rhode  Island  APA.            Chapter  39 itself  is concerned  with "[p]arties  having any            matter of dispute between them arising under any law relating            to schools or  education."   R.I. Gen. Laws    16-39-1.   The            federal district court for  the district of Rhode Island  had            previously  noted  that  section  16-39-4  applies  to  cases            involving benefits for handicapped children under chapter 39.                                         -8-                                          8            Laura V. v. Providence Sch. Bd., 680 F. Supp.  66, 70 (D.R.I.            ________    ___________________            1988).                        In  holding  that the  APA  does  not apply,  the            opinion  in the trial courts relied on a different chapter of            the education laws,  chapter 60.  Chapter  60 establishes the            Board of  Regents for Elementary and  Secondary Education and            defines  its  duties.     Chapter  60  contains  a  provision            exempting itself  from  the provisions  of  the APA.    Rhode            Island  General   Laws  section 16-60-10  states   that  "the            provisions of  the Administrative Procedures  Act, chapter 35            of title 42, shall not apply to this chapter."                      Federal  law  requires that  we  look  to the  most            closely  analogous statute  of  limitations,  and the  review            procedures  which have  been applied  to chapter  60 are  not            analogous to  the  review  provisions  of the  IDEA.    Under            section 16-60-10, review of decisions of the Board of Regents            is by writ of  certiorari.  Pawtucket Sch. Comm. v.  Board of                                        ____________________     ________            Regents for Elementary and  Secondary Educ., 513 A.2d 13,  15            ___________________________________________            (R.I.  1986);  Bristol Sch.  Dep't  v. Board  of  Regents for                           ___________________     ______________________            Educ., 396 A.2d 936 (R.I. 1979).  Review under the IDEA  is a            _____            matter  of  right  rather  than  discretionary.    Under  the            provisions  of  the  IDEA,  all   aggrieved  parties,  school            committees  and  parents  alike,  are  entitled  to  judicial            review:                        Any party aggrieved  by the findings  and                      _________                      decision  made  under  subsection (b)  of                                         -9-                                          9                      this section [providing  for first  level                      of  administrative  review] who  does not                      have   the  right  to   an  appeal  under                      subsection  (c) [providing  for impartial                      review    of   the    hearing   officer's                      decision], and any party aggrieved by the                      findings  and  decision under  subsection                      (c),  shall  have the  right  to  bring a                            ___________________________________                      civil   action   with   respect  to   the                      ______________                      complaint  presented   pursuant  to  this                      section . . . .            20  U.S.C.    1415(e)(2) (emphasis  added); see  also  Doe v.                                                        ___  ____  ___            Anrig, 561  F.  Supp. 121,  124  (D. Mass.  1983)  (reviewing            _____            town's  appeal from administrative  decision under  the IDEA,            then  known as  the  Education for  All Handicapped  Children            Act).   Indeed, entitlement  to review is  arguably the  most                            ___________            salient feature of review  under the IDEA.  Review  under the            Rhode Island  APA is also a  matter of right.   See R.I. Gen.                                                            ___            Laws   16-35-15 (providing that  anyone who has exhausted all            available  administrative remedies  is  entitled to  judicial                                                    ________            review  under the  APA).   By  contrast,  review by  writ  of            certiorari to the state's  highest court is discretionary and            is used for significant  issues of public interest.   Because            federal  law requires  borrowing the  most  closely analogous            statute  of  limitations, we  look  to  section 16-39-4,  the            provision providing for  APA review, rather than  to case law            providing for review by writ of certiorari.                      The adoption of the district court's position would            pose another  problem under  federal law, which  we describe,            but which we need not resolve in light of our holding.  Under                                         -10-                                          10            that position,  parents or  school systems seeking  to appeal            from  decisions by impartial  review officers acting pursuant            to  the IDEA  would effectively  have less  than thirty  days            within  which to seek judicial  review.  That  is because the            finality  provision  of  section 16-39-3.1  starts  the clock            running from the date a decision is issued.  Here the parties            did  not   receive  the   review  officer's   decision  until            approximately fifteen  days after the date  of that decision,            and thirteen days after it  was received by the RIDE.   Thus,            about  half of the thirty days had elapsed before the parties            even  knew of the decision.   The delay  occurred because the            hearing  officer   forwarded  the   decision  to  the   state            Department of  Special Education, which then  forwarded it to            the parties.   Bureaucracies being what they  are, some delay            is  inevitable.  Whether less than thirty days to seek review            would  be  inconsistent  with  the IDEA's  goal  of  parental            involvement  is a  serious issue.3   See,  e.g., 20  U.S.C.                                                   ___   ____            1415(b)(1)(D) (requiring  school authorities to  give parents            notice of pertinent procedures); see also  Amann, 991 F.2d at                                             ___ ____  _____            932.                      Finally, even  if we were to  choose the applicable            statute of  limitations based  solely on the  requirements of                                            ____________________            3  The parties advise us that the hearing officers are now            told to mail their decisions directly to the parties.  Even            so, the mail takes time, which again cuts into the thirty day            limitations period.                                         -11-                                          11            state law, it is far from clear that chapter 60 is applicable            here.  By its terms, this exclusion from the APA applies only            to chapter  60, and not  to the  provisions of chapter  39 on            which the Providence Department relies.  If one probes behind            the  literal terms  of  the chapter  60 exclusion  provision,            there is little reason  to think this exclusion was  meant to            apply to disputes between  a child and a school  system, like            the  dispute here.   The  Rhode Island  APA has  a  number of            provisions  governing   the  internal  operations   of  state            agencies,  such as  the procedures  for adopting  rules, R.I.            Gen. Laws    42-35-3, and restrictions on  ex parte contacts,            id.   42-35-13.   That the Rhode Island  legislature may have            ___            intended to  exempt the  Board  of Regents  from these  rules            under certain  circumstances does  not necessarily  mean that            the legislature intended to exempt from judicial review under            the  APA matters within the  purview of chapter 39 concerning            benefits owed to children under education laws.  In Pawtucket                                                                _________            School Committee  v. Pawtucket  Teachers  Alliance, 610  A.2d            ________________     _____________________________            1104, 1106 (R.I. 1992), for example, the Rhode Island Supreme            Court found  that because section 16-39-2,  which governs the            appeal  of school  committee actions  to the  Commissioner of            Education, was  not expressly exempted from  the Rhode Island            APA  pursuant  to  R.I.  Gen.  Laws     42-15-18(b),  certain            provisions of  the APA applied  to hearings conducted  by the            Commissioner.     Similarly,  while  listing  numerous  other                                         -12-                                          12            provisions to which  the APA does  not apply, section  42-15-            18(b) contains no express exemption for section 16-39-3.1.                        It may  be true that,  under certain circumstances,            as a matter of Rhode Island law, review of decisions pursuant            to chapter 39 is not governed by the APA.  There  is case law            suggesting  that  judicial  review  of  a  Board  of  Regents            decision is only available through a writ of certiorari.  See                                                                      ___            D'Ambra v. North Providence Sch.  Comm., 601 A.2d 1370,  1372            _______    ____________________________            (R.I.  1992).  We  need not resolve this  issue of state law,            for  this case is more analogous, as a matter of federal law,            to the type of cases reviewed under the APA.                      For these  reasons, we  hold that the  Rhode Island            APA, R.I.  Gen. Laws     42-35-15, including  the statute  of            limitations and triggering  event it sets forth,  is the most            closely  analogous  statute  under  state law  and  therefore            applies  to IDEA  appeals from  Rhode Island.4    Because the            School Department's  notice of  appeal fell within  the Rhode            Island APA  limitations period, the decision  of the district            court  dismissing  the  case is  reversed,  and  the case  is                                            ____________________            4  In light of this ruling, the Rhode Island Department of            Elementary and Secondary Education may wish to reconsider the            language it uses on its notice of decision: "The Rhode Island            Department of Education does not set a time frame to bring            civil action, and defers that issue to the court in which            appellant seeks jurisdiction."  Cf. Speigler v. District of                                            ___ ________    ___________            Columbia, 866 F.2d 461, 469 (D.C. Cir. 1989) (rejecting            ________            application of statute of limitations to bar parents' actions            where parents had not been notified of the limitations            period).                                          -13-                                          13            remanded for prompt  disposition.  "The legislative  history,            statutory  terms, and  regulatory framework  of the  IDEA all            emphasize  promptness  as  an  indispensable  element  of the            statutory scheme."  Amann, 991 F.2d at 932.  While the courts                                _____            have  acted expeditiously  (eleven  months  from  filing  the            complaint  through this appeal), the events  at issue go back            to 1990.  Justice would be best served by a prompt resolution            of the longstanding dispute.  No costs are awarded.                                         -14-                                          14
