United States Court of Appeals,
Eleventh Circuit.
Nos. 95-2968, 95-3091.
Scott ZIPPERER, a minor, By and Through his mother and next
friend Elizabeth ZIPPERER; Elizabeth Zipperer, individually,
Plaintiffs-Appellants,
v.
The SCHOOL BOARD of SEMINOLE COUNTY, FLORIDA, Defendant-Appellee.
Scott ZIPPERER, a minor, By and Through his mother and next
friend Elizabeth ZIPPERER; Elizabeth Zipperer, individually,
Plaintiffs-Appellees,
v.
The SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, Defendant-
Appellant.
May 6, 1997.
Appeals from the United States District Court for the Middle
District of Florida. (No. 94-842-CIV-ORL-18), G. Kendall Sharp,
Judge.
Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.
BIRCH, Circuit Judge:
A disabled child and his mother, as prevailing parties in a
state administrative hearing, brought this action for an award of
attorneys' fees pursuant to 20 U.S.C. § 1415(e)(4)(B), a provision
of the Individuals with Disabilities Education Act ("IDEA"), 20
U.S.C. §§ 1400-85. The district court granted summary judgment in
favor of the defendant school system. The child and his mother
appeal that order, and the school system cross-appeals the district
court order granting a motion by the child and his mother for an
*
Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
extension of time to file the notice of appeal. We address two
issues in these consolidated appeals: (1) whether reliance on the
normal course of the delivery of mail can establish excusable
neglect for an untimely filing of a notice of appeal and (2) what
constitutes the applicable statute of limitations in a suit filed
under section 1415(e)(4)(B). We AFFIRM in part, and VACATE and
REMAND in part.
I. BACKGROUND
Elizabeth Zipperer and her minor son Scott initiated an
administrative due process hearing under the IDEA to establish that
Scott was disabled and thus entitled to special education services.
Following the hearing, the hearing officer determined that the
School Board of Seminole County ("the school system") had failed to
provide Scott with a free, appropriate public education as required
under the IDEA. There is no dispute that the Zipperers were the
prevailing party at the administrative hearing.
The Zipperers, as the prevailing party, requested attorneys'
fees at the administrative hearing. The hearing officer, however,
concluded that he lacked jurisdiction to award attorneys' fees.
Three years and ten months later, the Zipperers filed an action in
federal district court to recover attorneys' fees pursuant to 20
U.S.C. § 1415(e)(4)(B). Because the IDEA is silent regarding the
time period for filing an action, the district court borrowed the
Florida thirty-day statute of limitations applicable to appeals of
administrative decisions, Fla. Stat. ch. 120.68(2) and Fla. R.App.
P. 9.110(b), and found the Zipperers' action to be time barred.
The district court, accordingly, granted summary judgment in favor
of the school system on June 27, 1995.
The Zipperers sought to appeal the summary judgment and mailed
a notice of appeal on July 21, 1995 from Rockledge, Florida via
first class mail to the district court in Orlando, Florida. The
notice of appeal was filed with the district court on July 28,
1995, thirty-one days after the entry of summary judgment. When
this court questioned the timeliness of the notice of appeal, the
Zipperers filed a motion with the district court for an extension
of time pursuant to Rule 4(a)(5) of the Federal Rules of Appellate
Procedure. The Zipperers alleged that the seven-day delay in the
delivery of the notice of appeal was unexpected in view of the
normal three-day course of delivery. The district court found
excusable neglect for the Zipperers' failure to file a timely
notice of appeal and granted the motion for an extension of time.
The Zipperers appeal the summary judgment, and the school system
appeals the order granting the motion for an extension of time to
file the notice of appeal.
II. DISCUSSION
We address two issues in these consolidated appeals. First,
we consider whether the district court properly granted the
Zipperers an extension of time for filing their notice of appeal.
Second, we consider whether the Zipperers' claim for attorneys'
fees was barred by a thirty-day statute of limitations.
A. Extension of Time for Filing Notice of Appeal
As a threshold issue, we examine the jurisdictional question
raised by the school system's appeal of the order granting the
Zipperers' motion for an extension of time for filing a notice of
appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S.
56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (holding that a
timely notice of appeal is "mandatory and jurisdictional"). If a
party fails to file a timely notice of appeal, the appellate court
is without jurisdiction to hear the appeal. Pinion v. Dow Chem.,
U.S.A., 928 F.2d 1522, 1525 (11th Cir.1991). Federal Rule of
Appellate Procedure 4(a)(5), however, provides that the district
court can extend the time for filing the notice upon a showing of
excusable neglect. We review a determination of excusable neglect
for abuse of discretion. See Advanced Estimating Sys., Inc. v.
Riney, 77 F.3d 1322, 1325 (11th Cir.1996).
The Supreme Court has held that "excusable neglect" as used in
Bankruptcy Rule 9006(b)(1) should be determined using a flexible
analysis. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123 L.Ed.2d
74 (1993). Under Pioneer, a court analyzing a claim of excusable
neglect should consider "all relevant circumstances surrounding the
party's omission .... includ[ing] ... the danger of prejudice to
the [nonmovant], the length of the delay and its potential impact
on judicial proceedings, the reason for the delay, including
whether it was within the reasonable control of the movant, and
whether the movant acted in good faith." Id. at 395, 113 S.Ct. at
1498 (footnote omitted). We have previously held that the same
flexible analysis of excusable neglect applies to a ruling under
Rule 4(a)(5). Advanced Estimating, 77 F.3d at 1324.
In this case, the Zipperers filed the notice of appeal one
day late. They mailed the notice six days before the required date
of filing. See Fed. R.App. P. 4(a)(1) (requiring that the notice
of appeal be filed within thirty days of the date of entry of a
judgment or order). The date they mailed the notice was several
days before the three days required for normal mail delivery
between the point of mailing and the district court. The school
system argues that the district court erred in finding that the
Zipperers' reliance on the normal delivery of mail constituted
excusable neglect. We disagree and find no abuse of discretion in
the district court's determination of excusable neglect.
Therefore, we have jurisdiction to consider the Zipperers' appeal.
B. Statute of Limitations Applicable to 20 U.S.C. § 1415(e)(4)(B)
The additional issue before this court is whether the
district court erred in applying a thirty-day statute of
limitations to bar the Zipperers' suit for attorneys' fees under 20
U.S.C. § 1415(e)(4)(B). The IDEA provides no statutes of
limitations for either substantive appeals under section 1415(e)(2)
or actions for attorneys' fees under section 1415(e)(4)(B). Powers
v. Indiana Dep't of Educ., 61 F.3d 552, 555 (7th Cir.1995); see
JSK By and Through JK v. Hendry County Sch. Bd., 941 F.2d 1563,
1570 n. 1 (11th Cir.1991) ("JSK ") (acknowledging that there is no
statute of limitations provided for civil actions under section
1415(e)(2)). "The Supreme Court has held that "when 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.' " Id. (quoting Lampf, Pleva,
Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355, 111
S.Ct. 2773, 2778, 115 L.Ed.2d 321 (1991) (citations omitted)).
When the state limitations period applicable to the most analogous
state law is inconsistent with the policies of the federal statute,
however, the state limitations period is rejected. Friedlander v.
Troutman, Sanders, Lockerman & Ashmore, 788 F.2d 1500, 1502 (11th
Cir.1986). Applying these "borrowing" rules, the district court in
this case applied Florida's thirty-day limitations period for
appeals from administrative hearings, see Fla. Stat. ch. 120.68(2);
Fla. R.App. P. 9.110(b), and rejected the four-year period provided
for "actions founded on statutory liability," Fla. Stat. ch.
95.11(3)(f).
The issue of which statute of limitations is most analogous
and should be applied to an action for attorneys' fees under the
IDEA is one of first impression for this court.1 Several other
circuits have reached the issue of the applicable statute of
limitations for substantive appeals under the IDEA. See, e.g.,
Amann v. Town of Stow, 991 F.2d 929 (1st Cir.1993) (applying a
thirty-day period for appeals of administrative decisions);
Spiegler v. District of Columbia, 866 F.2d 461 (D.C.Cir.1989)
(same); Adler v. Education Dept., 760 F.2d 454 (2d Cir.1985)
(applying a 120-day statutory limitations period for review of
administrative decisions regarding children with disabilities);
1
In JSK, we stated in dicta that, in the context of a
substantive appeal under section 1415(e)(2), we likely would
adopt the thirty-day statute of limitations for an appeal of
administrative proceedings. 941 F.2d at 1570 n. 1. Because this
court has not ruled on the applicable statute of limitations for
a suit brought under section 1415(e)(2), we need not address
whether the limitations period should be the same for suits
brought under section 1415(e)(2) and section 1415(e)(4)(B).
Accordingly, nothing in this case should be viewed as a ruling on
the applicable statute of limitations for a substantive appeal of
an administrative hearing under 1415(e)(2).
Department of Educ. v. Carl D., 695 F.2d 1154 (9th Cir.1983)
(applying a thirty-day period for appeals of administrative
decisions). Only the Seventh Circuit, however, has ruled on the
applicable statute of limitations for suits brought for attorneys'
fees under the IDEA. See Powers, 61 F.3d 552 (applying Indiana's
thirty-day period of limitations for review of an administrative
decision to a claim for attorneys' fees); Reed v. Mokena Sch.
Dist. No. 159, 41 F.3d 1153 (7th Cir.1994) (applying a 120-day
limitations period for review of an administrative decision under
the Illinois School Code in a case solely for attorneys' fees);
Dell v. Board of Educ., 32 F.3d 1053 (7th Cir.1994) (applying the
same Illinois statute in a case involving both educational expenses
and attorneys' fees).
The Seventh Circuit has reasoned that a claim for attorneys'
fees under the IDEA should be viewed as ancillary to an
administrative proceeding rather than an independent cause of
action. See Powers, 61 F.3d at 556. Accordingly, the Seventh
Circuit held in Dell that the most analogous state statute for both
substantive appeals and actions for attorneys' fees was the
relatively short limitations period for review of an administrative
appeal. Dell, 32 F.3d at 1064. In Powers and Reed, the court
similarly applied a short limitations period in suits brought
solely for attorneys' fees after the request for an administrative
hearing was withdrawn. Powers, 61 F.3d at 557; Reed, 41 F.3d at
1154. Although the Seventh Circuit has held that claims brought
under section 1415(e)(2) and 1415(e)(4)(B) are sufficiently similar
to justify borrowing the same state statute of limitations for
either claim, the court has acknowledged concerns for the brevity
of a thirty-day statute of limitations in IDEA cases. See Powers,
61 F.3d at 559.
Although the district court in this case followed the
reasoning of the Seventh Circuit, a number of district courts have
rejected that reasoning and borrowed longer state statutes of
limitations. See J.B. By and Through C.B. v. Essex-Caledonia
Supervisory Union, 943 F.Supp. 387, 391-92 (D.Vt.1996) ("J.B.")
(applying the six-year catchall statute of limitations); Curtis K.
v. Sioux City Community Sch. Dist., 895 F.Supp. 1197, 1220
(N.D.Iowa 1995) (borrowing the five-year limitations period for
"actions for which no other statute of limitations is specified");
James v. Nashua Sch. Dist., 720 F.Supp. 1053, 1058 (D.N.H.1989)
(applying the three-year catchall statute of limitations for
"personal actions"); Robert D. v. Sobel, 688 F.Supp. 861, 864
(S.D.N.Y.1988) (borrowing the three-year statute of limitations for
actions to recover upon a liability imposed by statute). These
courts generally have distinguished claims under section 1415(e)(2)
and section 1415(e)(4)(B) and reasoned that the short statutes of
limitations associated with appeals of administrative procedures,
while appropriate when a child's Individualized Education Plan is
at issue in a substantive appeal of an administrative
determination, are too short to vindicate the underlying federal
policies associated with the fee-claims provisions of the IDEA.
See, e.g., J.B. at 391 ("Congressional policy favors the protection
of the educational rights of the [disabled]. A short statute of
limitations in attorneys' fee claims would frustrate that
policy.").
We agree that the IDEA provides two distinguishable causes of
action under sections 1415(e)(2) and 1415(e)(4)(B).2 Most
significantly, section 1415(e)(2) provides for the appeal of a
substantive administrative decision, whereas section 1415(e)(4)
provides for an independent claim for attorneys' fees. Because the
district court, rather than the administrative agency, has
jurisdiction to award fees, the prevailing party cannot appeal an
administrative decision under section 1415(e)(4). Accordingly, we
reject the school systems' argument that a claim under section
1415(e)(4)(B) is analogous to the appeal of an administrative
hearing. Instead, we find that section 1415(e)(4) provides a claim
based on a statutory liability and is, thus, more analogous to Fla.
Stat. ch. 95.11(3)(f).
We next address whether adoption of a four-year statute of
limitations is inconsistent with the policies of the IDEA. We
acknowledge that a short period of limitations for claims brought
pursuant to section 1415(e)(2) "assure[s] prompt resolution of
disputes over education plans for [disabled] children." Carl D.,
695 F.2d at 1157, quoted in JSK, 941 F.2d at 1570 n. 1.
Nonetheless, the resolution of claims for attorneys' fees is less
urgent and, in reality, is more likely to be resolved by the
attorneys' interest in prompt payment than by a short period of
2
Section 1415(e)(4) provides that a federal district court
can award attorneys' fees to the "parents or guardian of a child
with a disability who is a prevailing party." Section 1415(e)(2)
provides that "any party aggrieved" by a decision of an
administrative hearing can bring an action in either a state
court or federal district court. Both the party who can appeal
and the available forums are different under the two actions.
limitations. A four-year period of limitations, like the award of
attorneys' fees to parents who are prevailing parties, is likely to
encourage the involvement of parents, as represented by attorneys,
in securing an appropriate public education. We conclude that the
application of a four-year statute of limitations to claims for
attorneys' fees under the IDEA is consistent with the policies of
the federal statute. Thus, we determine that Fla. Stat. ch.
95.11(3)(f) is the most analogous Florida law in a case brought
under section 1415(e)(4)(B) of the IDEA. The district court in this
case erred in failing to apply the most analogous state statute.
III. CONCLUSION
In this consolidated appeal involving the award of attorneys'
fees under the Individuals with Disabilities Education Act, Scott
Zipperer and his mother appeal the summary judgment entered in
favor of the School Board of Seminole County; the School Board
appeals the district court's order granting the Zipperers' motion
for an extension of time to file a notice of appeal. We determine
that the district court was within its discretion in finding
excusable neglect in the Zipperers' untimely notice of appeal
because the Zipperers' mailed the notice in cautious reliance on
the normal delivery of mail and filed the notice only one day late.
We therefore have jurisdiction over this appeal. The district
court, however, failed to borrow the limitations period from the
most analogous state statute and erred in finding the Zipperers'
claim to be time barred. We determine that claims for attorneys'
fees under the IDEA are distinguishable from appeals of substantive
administrative decisions and that the most analogous Florida
statute for a claim for attorneys' fees under the IDEA is a
four-year statute of limitations for claims based on statutory
liability. Accordingly, we AFFIRM the district court's order
granting an extension of time for filing the notice of appeal,
VACATE the court's summary judgment order, and REMAND for
proceedings consistent with this opinion.