

                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 &amp; 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
