Amy M . et al. v . Timberlane Sch. CV-99-269-B 08/11/00

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Amy M. and Susan J., as parent and next friend of Amy M.

v. Civil N o . 99-269-B Opinion N o .

Timberlane Regional School District and SAU #55, Plaistow, NH

MEMORANDUM AND ORDER

Susan J. brought this action on behalf of her daughter, Amy

M., to recover attorney’s fees that she incurred in challenging

her daughter’s educational placement under the Individuals with

Disabilities Education Act (“IDEA”),

et seq.

Defendants (collectively, “the School District”) have moved for

summary judgment alleging that (1) plaintiff’s complaint is time-

barred; and (2) she is not entitled to an award of attorney’s

fees because her attorney, Mary Ann Chase, is a relative who was

not admitted to practice law in this state when she provided the legal services at issue.1 For the following reason, I reject

both arguments and deny the School District’s motion.

I. BACKGROUND2

Amy was born June 2 3 , 1982. She began her schooling in the

Timberlane Regional School District in the first grade. At the

age of seven, Amy was diagnosed with Attention Deficit Hyper-

activity Disorder (“ADHD”). Although the School District did not

find that Amy required any special education services, she

experienced an increasing number of academic and behavioral

problems during her early school years.

1 For the purposes of its motion, the School District assumes that plaintiff qualifies as a prevailing party. See

(i)(3)(B) (West 2000) (“In any action or proceeding brought under this section, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party.”). 2 I take the facts from the hearing officer’s January 1 1 , 1999 order and the proposed joint statements of material facts, and objections thereto, that the parties have submitted pursuant to Local Rule 9.3. The parties do not appear to dispute the facts relevant to the disposition of the School District’s motion for summary judgment.

-2- Amy entered Timberlane Regional High School (“TRHS”) in the

fall of 1996. She left school on or about April 7 , 1997, facing

the threat of expulsion for disciplinary reasons. Around the

same time, Amy’s mother filed a complaint with the United States

Department of Education’s Office of Civil Rights charging that

the School District had violated Amy’s rights by denying her

educational services and failing to take her disability into

account when disciplining her. The School District settled the

complaint by, among other things, agreeing to evaluate Amy and

convene a meeting to discuss an appropriate educational placement

for her.

After Amy was evaluated in August 1997, the School District

prepared an Individualized Education Program (“IEP”) for Amy

which proposed that she receive special education services in a

regular classroom setting. Amy’s mother accepted the proposed

IEP but asked the School District to implement the IEP by placing

Amy at a private school. Although the School District did not

deem a private school placement to be necessary, it made repeated

-3- but unsuccessful efforts to accommodate Amy’s mother’s request.

It also conducted several unsuccessful mediation sessions in an

effort to agree on an alternative placement. Amy did not attend

school while these efforts were ongoing.

The School District developed a new IEP for Amy in August

1998. The new IEP included a proposal that Amy attend public

school and be enrolled in the School District’s Transitional

Educational Program. Amy’s mother objected to the proposed IEP

and filed a request for a due process hearing in October 1998.

She also argued that the School District had violated the IDEA by

failing to provide Amy with an appropriate educational placement

since April 1997.

A due process hearing was held before a New Hampshire

Department of Education hearing officer on January 4-6, 1999. On

January 1 1 , the hearing officer issued a “Final Decision” in

which she determined that although the School District’s proposed

placement was acceptable, the School District had denied Amy her

right to a free and appropriate public education since September

-4- 1997, when it determined that she was eligible for special

educational services. Accordingly, the hearing officer ordered

the School District to provide Amy with additional specified

services to address “some of the losses that were occasioned by

the mishandling of this case.” Hearing Officer Order at 1 6 .

Plaintiff and the School District received copies of the hearing

officer’s decision via certified mail on January 22 and 2 3 , 1999,

respectively.

On January 2 5 , 1999, plaintiff filed a motion for recon-

sideration in which she requested that Amy be awarded two years

of compensatory, post-graduation education. In its January 26

opposition, the School District argued that plaintiff’s motion

for reconsideration was untimely. The hearing officer rejected

the School District’s timeliness argument but denied plaintiff’s

motion on the merits. The hearing officer issued her order

denying the motion on February 15 and plaintiff received a copy

of the order via ordinary mail on February 1 6 .

-5- Shortly thereafter, plaintiff sent the School District a

request for attorney’s fees which the School District refused on

May 2 7 , 1999. Plaintiff filed the present action to recover

attorney’s fees on June 1 5 , 1999.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the record, viewed in the

light most favorable to the non-moving party, shows that no

genuine issues of material fact exist and that the moving party

is entitled to judgment as a matter of law. See Fed R. Civ. P.

56(c); Commercial Union Ins. C o . v . Walbrook Ins. Co.,

(1 st Cir. 1993). A material fact is one “that might

affect the outcome of the suit under the governing law.”

Anderson v . Liberty Lobby, Inc.,

(1986). A

genuine factual issue exists if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

-6- The party moving for summary judgment “bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] . . .

which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena v .

Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996) (citing

Celotex,

; Anderson,

4 9 ) . I apply

this standard in ruling on the School District’s motion for

summary judgment.

III. DISCUSSION

The School District claims that plaintiff’s claim is barred

by the applicable statute of limitations. It also argues that

-7- plaintiff is not entitled to attorney’s fees because her counsel

is a relative who was not admitted to practice law in New

Hampshire when she provided the legal services at issue. I

address each argument in turn.

A. Statute of Limitations

The IDEA does not specify a limitations period during which

an appeal from an administrative decision or an action for

attorney’s fees must be filed. As a result, a federal court must

look to state law to determine the correct limitations period.

See Providence Sch. Dep’t v . Ana C.,

, 2-3 (1st Cir.

1997); Murphy v . Timberlane Reg’l Sch. Dist.,

(1 st Cir. 1994). In the IDEA context, New Hampshire requires

that an appeal from a “final administrative decision” or an

action “seeking reimbursement for attorney’s fees” be commenced

within 120 days “from receipt of the final decision,” copies of

which will be sent by certified mail.

-C:16-b IV, V (1999).

-8- Neither

-C:16-b nor the New

Hampshire Department of Education’s IDEA regulations defines the

term “final administrative decision.” Nor has the New Hampshire

Supreme Court been called upon to interpret this provision. The

court, however, has addressed the general issue of whether a

motion for reconsideration, the filing of which is not authorized

by the governing statute and regulations, affects the running of

the limitations period for seeking judicial review of an

administrative decision. In Petition of Ellis, the New Hampshire

division of human services issued an order denying the

petitioner’s claim for medical assistance. Rather than

immediately seeking judicial review, the petitioner filed two

unsuccessful motions for rehearing. When the petitioner

ultimately filed a notice of appeal with the New Hampshire

Supreme Court, the division argued that the appeal was untimely

because the petitioner had not filed his notice of appeal within

30 days of its initial order denying his claim. See Petition of

Ellis,

,

2 , 62 (1993) (per curiam).

-9- The Supreme Court began its analysis by noting that the

petitioner had no statutory right to appeal because “[t]he sole

means of obtaining judicial review of a fair hearings decision of

the division of human services is by a petition for writ of

certiorari.”

at 1 6 0 ,

2 . The court then noted

that the limitations period for filing a writ of certiorari

challenging an administrative decision is the 30-day period

specified in

, the statute governing

appeals from certain agency decisions.

After identifying

the appropriate limitations period, the court then considered

whether the limitations period began to run from the date of the

original decision, the date that the division denied the first

motion for rehearing, or the date that it denied the second

motion for rehearing. In concluding that the limitations period

began to run from the date of the ruling on the first motion for

rehearing even though the division’s rules did not authorize the

filing of rehearing motions the Court explained

[i]n cases where no agency rule or applicable statute sets a different time limit for seeking rehearing or

-10- reconsideration of agency orders or decisions, that policy is furthered by permitting a petitioner, who files a motion for rehearing with a state adminis- trative agency within the analogous [thirty]-day period set forth in RSA 541:3 and whose motion is acted upon on the merits by the agency, to thereafter file a certiorari petition within thirty days.

. 3 See also Appeal of Golding,

,

(1981) (per curiam) (writ of

certiorari filed within 30 days of ruling on motion for rehearing

timely even though agency rules did not contemplate motions for

rehearing).4

3 The court rejected petitioner’s claim that the appeal period should not begin to run until the court ruled on his second motion for rehearing because the analogous provision in

provided that the appeal period began to run after the ruling on the first motion for rehearing. Petition of Ellis,

,

3 . 4 The court followed a somewhat different approach in Buyer v . Abundant Life Farm, Inc.,

,

(1985). As in Petition of Ellis, the statute and regulations at issue in Buyer did not authorize a party to file a motion for recon- sideration, but the practice of the agency was to permit such motions. In Buyer, however, the court determined that the limitations period began to run when the agency issued its decision but that the limitations period was tolled during the time that the motion for reconsideration was pending. See

,

. I decline to follow Buyer to the extent that it is

-11- The School District argues that I should not rely on chapter

541 in this case because chapter 541 does not directly apply to

an IDEA action. I reject this argument. Petition of Ellis

demonstrates that chapter 541 need not be directly applicable to

be relevant. Indeed, looking to chapter 541 for guidance is

particularly appropriate in an IDEA action. Prior to the

enactment of RSA 186-C:16-b, courts “borrowed” the thirty-day

limitation period in RSA 541:6 because they concluded that it was

the most analogous state statute of limitations to apply in an

IDEA case. See Herbert v . Manchester N.H., Sch. Dist.,

0 , 83-84 (D.N.H. 1993); Valerie J. v . Derry Coop. Sch.

Dist.,

3 4 , 438 (D.N.H. 1993).

In the absence of clear guidance from either the statute or

its implementing regulations that the legislature intended a

contrary result, I conclude that the New Hampshire Supreme Court

inconsistent with Petition of Ellis because Buyer was decided under a different statutory scheme and, in any event, Petition of Ellis represents the New Hampshire Supreme Court’s most recent position on the effect that an unauthorized motion for reconsideration has on the running of a limitations period.

-12- would apply the approach articulated in Petition of Ellis and

determine that a hearing officer’s decision denying a motion for

rehearing on the merits is the “final administrative decision”

triggering the commencement of the 120-day period specified in

-C:16-b V . Accordingly, because the

hearing officer accepted plaintiff’s motion for reconsideration

and rejected the School District’s argument that the motion was

untimely, the time for filing a motion for attorney’s fees did

not begin to run until the hearing officer denied the motion for

reconsideration on February 15. 5 Under

-C:16-b V , plaintiff had 120 days from this date in which to

file her federal action to recover attorney’s fees. Because

5 I also reject the School District’s argument that the hearing officer’s February 15 order cannot be a final administrative decision for purposes of

-C:16-b because the hearing officer sent it to the parties by ordinary mail, rather than certified mail, as is required by the statute. See

-C:16-b IV, V (providing that all final decisions “shall be sent certified mail, return receipt requested”). The hearing officer’s error in failing to follow the technical requirements of

- C:16-b does not strip her February 15 order of its status as the final administrative decision in this case.

-13- plaintiff filed her action within that period, her claim is not

time-barred.

B. Attorney Chase’s Status

The School District argues that plaintiff is not entitled to

attorney’s fees because her attorney is not a member of the New

Hampshire bar. It also asserts that an award of attorney’s fees

is improper because plaintiff’s attorney is a relative. Neither

argument has merit.

The IDEA gives a parent the right to be accompanied and

advised by counsel at a due process hearing. See

(h)(1) (West 2000);

(a)(1)(1999). The

New Hampshire regulations implementing the IDEA additionally

require that a parent’s counsel be an attorney. See N.H. Code

Admin. R. Ed. 1128.09 (b)(1) (1998). Nothing in either the IDEA

or the regulations, however, expressly conditions a parent’s

right to recover attorney’s fees on her attorney being a member

of the bar of the state in which the legal services are rendered.

The only limitation that the IDEA imposes on the recovery of

-14- attorney’s fees by a prevailing party relate to the circumstances

under which the fees were incurred, rather than the status of the

person who incurred the fees.6 See

(i)(3)(D),

(F) (West 2000). Accordingly, the IDEA does not bar a court from

awarding attorney’s fees to a plaintiff who has chosen to be

represented by an attorney from another state.

The School District nevertheless argues that plaintiff

should be barred from recovering attorney’s fees because her

attorney engaged in the unauthorized practice of law. I reject

this argument because it is based upon a mistaken interpretation

of New Hampshire law. Although

provides that “[n]o person shall be permitted commonly to

practice as an attorney in court unless he has been admitted by

the court and has taken the oath prescribed in RSA 311:6,” N.H.

6 For example, the IDEA either precludes or limits recovery of attorney’s fees if (1) a parent rejects a timely and reasonable written settlement offer; (2) the fees sought were incurred in connection with a meeting between a parent and a school that was not a due process hearing; and/or (3) the award is inflated due to a parent’s dilatory conduct or an attorney’s incurrence of an unreasonable fee. See

(i)(3)(D),(F).

-15- Rev. Stat. Ann. § 311:7 (1995), the New Hampshire Supreme Court

has held that a person may appear in court on another person’s

behalf without being admitted to practice in New Hampshire as

long as the person is of good character and does not commonly

practice law in this state. See Appeal of Campaign for Rate

Payers’ Rights,

,

(1994);

New England Capital Corp. v . Finlay Co.,

,

(1993). The School District does not challenge

Chase’s character. Nor does it suggest that she commonly

practices law in New Hampshire. Accordingly, it cannot claim

that she engaged in the unauthorized practice of law by

representing Amy at the due process hearing.7

The School District’s final argument is that plaintiff is

7 The Ninth Circuit’s decision in Z.A. v . San Bruno Park Sch. Dist.,

(9th Cir. 1999) is distinguishable because the due process hearing at issue in that case occurred in California where state law prohibits a person from receiving “compensation for services as an attorney in California unless he or she was a member of the state bar at the time the services were rendered.”

. The school district has failed to identify any similar limitation that exists under New Hampshire law. Hence, the Ninth Circuit’s decision is distinguishable.

-16- not entitled to fees because Chase is plaintiff’s aunt and Amy’s

great aunt. According to the School District, the rule that an

attorney-parent who represents herself and her child at a due

process hearing is not entitled to recover attorney’s fees under

section 1415(i)(3)(B), see Doe v . Board of Educ. of Baltimore

County,

(4th Cir. 1998), cert. denied,

(1999); Woodside v . School Dist. Of Philadelphia Bd. of

Educ., N o . CIV. A . 99-1830,

, at *4 (E.D. Pa. Jan.

2 7 , 2000); Rappaport v . Vance,

(D. Md.

1993), applies in this case because Chase is a “close relative”

of Amy. I reject this argument as well. An attorney-parent is

precluded from recovering attorney’s fees because the IDEA’s fee-

shifting provision is intended to encourage parents to seek

independent legal counsel. Courts are concerned that an

attorney-parent’s emotions will cloud her legal judgment and

adversely affect her representation of her child. See Doe,

; Woodside,

, at * 5 ; Rappaport,

. Moreover, courts observe that parents, unlike more

-17- distant relatives, do not need the incentive of a fee-shifting

provision to advocate for their children. See Doe,

.

The School District has pointed to no case, and I have been

unable to find one, holding that any family relationship between

a child and her attorney necessarily precludes an award of

attorney’s fees. Aside from noting the degree of relationship

between Chase and Amy -- great aunt and great niece -- the School

District has pointed to nothing that suggests Chase lacked the

necessary independence to represent Amy’s interests at the due

process hearing. As a result, the School District has not

carried its burden regarding this basis for its motion for

summary judgment. Therefore, I deny the School District’s motion

on this ground.

IV. CONCLUSION

For the foregoing reasons, I deny the District’s motion for

summary judgment (doc. n o . 1 0 ) . Pursuant to my order granting

-18- the parties’ joint motion to extend the deadline for filing their

decision memoranda (doc. n o . 1 4 ) , the parties will file their

decision memoranda no later than 30 days from the date of this

order.

SO ORDERED.

Paul Barbadoro Chief Judge

August 1 7 , 2000

cc: Arpiar Saunders, Jr., Esq. Diane McCormack, Esq. Mary Ann Chase, Esq.

-19-