Thirty Days, Ninety Days, or Three Years: What is the Statute of Limitations for Parents to File for Attorneys’ Fees Under IDEA?

If parents prevail at the Bureau of Special Education Appeals, they may file in federal court to recover their “reasonable attorneys’ fees.” 20 U.S.C. §1415(i)(3)(B).  While it is clear under IDEA that parents must bring the claim at the BSEA for denial of FAPE within two years of the district’s alleged violation, the federal statute does not say when a claim for attorneys’ fees must be filed. Three federal district court judges in Massachusetts have considered this issue with different results.  

In 2005, in Anthony F. v. School Committee of City of Medford, 2005 U.S. Dist. LEXIS 10158, Judge Rya Zobel held that a statute of limitations longer than thirty days was appropriate.  She concluded that a longer time period would not compromise timely resolution of a fee claim and it would “eliminate a potential barrier to reimbursement and thus will encourage and better enable parents to retain competent counsel.”  She reasoned that a shorter time period would require the attorney to divide his or her focus between any appeal relating to the child’s substantive claims and his or her desire to obtain payment for services rendered.

However, In 2012, in B.D. ex rel. Doucette v. Georgetown Pub. School Dist., Judge Douglas Woodlock, acknowledging his disagreement with Judge Zobel, decided that the statute of limitations for claiming attorneys’ fees is thirty days.

Now a third federal district court judge in Massachusetts has weighed in on the issue.  In the recent case of Mary G-N v. City of Northhampton, 2014 U.S. Dist. LEXIS 162726, (Mass. 2014), the plaintiff filed for an award of attorneys’ fees ninety days after the BSEA’s decision.  Northampton moved to dismiss the claim, arguing that it was time barred under Judge Woodlock’s ruling that the statute of limitations was thirty days from the BSEA decision. Judge Mark Mastroianni held that the applicable statute of limitations for claims of attorneys’ fees was the same as in the Massachusetts Tort Claims Act, which is three years. Judge Mastroianni concluded that “[t]he interests of parents and students could be harmed if attorneys either become hesitant to take on a case for fear of missing the limitations period for filing a claim for fees or if an attorney must split his attention between an ongoing substantive matter” and that “[a] school’s interest in a prompt resolution is unlikely to be harmed by a three-year limitations period.”

The First Circuit has yet to rule on this issue.  In Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 119 (1st Cir. 2003), however, the court did identify  three policy goals to be balanced in choosing a statute of limitations under IDEA: (1)“the parental interest in participation;” (2) “the school’s interest in speedy resolution of disputes;” and (3) “ the child’s interest in receiving education entitlement.” Other circuits are split on this issue. The Seventh Circuit and Sixth Circuit have reasoned that the state statute for judicial review of an administrative decision was most analogous.  This is typically thirty days, as it is in Massachusetts.   See M.G.L. c. 30A, §4.   The Eleventh Circuit has rejected this position, reasoning that a thirty day statute of limitations to file for attorneys’ fees was “too short to vindicate the underlying federal policies associated with [IDEA] fee-claims provisions” and finding that the law governing claims against state entities was most analogous.  Zipper v. School Board of Seminole County, Florida, 111 F.3d 847, 851 (11th Cir. 1997).

Until the First Circuit rules on this issue, attorneys are faced with the choice of filing an action for attorneys’ fees within thirty days of the BSEA decision or otherwise risking dismissal of their fee claim as time-barred depending on which judge is assigned to their case.  We feel that the longer statute of limitations has much to recommend it.  Since an appeal by either the district or parents must be made within ninety days of the BSEA decision, a three-year statute of limitations will most likely provide sufficient time for any appeal to be resolved and the question of who was the “prevailing party” to be finally determined.   Requiring an action for attorneys’ fees to be filed within thirty days, even before an appeal by either the parents or the district, makes little sense. The parties still have another sixty days to file an appeal.  As a practical matter, if an appeal is filed, any action for attorneys’ fees would be stayed until there is a final determination on the merits of the appeal.

Marie F. Mercier is a partner in the Special Education & Disability Rights practice group at Kotin, Crabtree & Strong, LLP in Boston, MassachusettsThis article was written with the assistance of Gabrielle Pingue. 

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