ORDER DENYING DEFENDANT’S MOTION TO DISMISS
I.
INTRODUCTION
This case involves solely a claim for attorney’s fees and costs under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, et seq. Defendant Oxnard Union High has moved for judgment on the pleadings. Having considered the papers submitted and the file in the case, the Court has determined that this matter is suitable for submission to the Court without oral argument. See Local Rule 7-15; Fed.R.Civ.P. 78. For the reasons stated herein, Defendant’s motion is DENIED.
II.
FACTUAL ALLEGATIONS
On September 27, 2001, Plaintiffs filed a complaint for award of attorney’s fees and costs. The following facts are alleged in the complaint, and are taken as true for purposes of this motion.
McGlinchy v. Shell Chemical Co.,
In September 1997, Elise Ostby enrolled in Rio Mesa High School in the Oxnard Union High School District (“District”). Complaint ¶ 10. She had several different handicaps, including learning disabilities, speech and language problems possibly resulting from Asberger’s Syndrome (a form of Autism) and serious emotional disturbance. Complaint ¶ 9. She had been enrolled in special education since the fifth grade. Id. Elise experienced extreme difficulties in school both academically and behaviorally because of her handicaps. Complaint ¶ 10.
On December 10, 1997, Elise’s parents, Norman and Shirley Ostby, attended a meeting with representatives of the District to discuss creating or modifying Elise’s Individualized Education Program (“IEP”).
1
Complaint ¶ 11. Under the IDEA, educational programs for handicapped children are designed and imple
On December 27, 1997, Elise was admitted to a psychiatric, hospital. Complaint ¶ 12. On January 5, 1998, Elise’s parents requested a full assessment of Elise’s eligibility for special education and a referral to Ventura County Behavioral Health (“VCBH”), which under California law shares interagency responsibility for providing mental health services to emotionally disturbed children. Complaint ¶ 13. (The Court assumes that Elise’s parents made this request to the District, but the complaint does not so specify.) Elise’s parents also requested that the IEP designate Elise as a student with serious emotional disturbance. Id.
In January 1998, Elise’s parents retained attorney Thomas E. Beltran to assist them in obtaining a free and appropriate education (“FAPE”) for Elise. Complaint ¶ 14. Mr. Beltran brought on Margaret S. Oppel as co-counsel. Id. Mr. Beltran and Ms. Oppel reviewed the files, consulted with psychologists, prepared for the filing of a request for Due Process Hearing, negotiated with the District and represented the Ostbys- at IEP meetings between April and June 1998. Id.
Between January and June 1998, Elise was hospitalized several times. Her treating psychiatrist recommended that she be-placed in a residential treatment program. Instead, the District provided her with schooling and mental health services through a local mental health support program and a special day class for students with serious emotional programs. These programs were not successful. Complaint ¶ 15. At this point, the Ostbys unilaterally decided to place Elise at Provo Canyon School, 'and paid for her tuition and transportation costs themselves. Complaint ¶ 16.
On August 9, 1998, Mr. Beltran and Ms. Oppel' filed a formal request for a Due Process Hearing under 20 U.S.C. § 1415(f). Complaint ¶ 17. The Ostbys sought prospective payment by the District for Elisé’s placement at Provo Canyon School, retroactive payment for the costs of her’ attendance there since June 1998, payment for the costs of their travel to and from the school, including the costs of their originally locating and visiting the school and continued payment for their transportation to visit her and to bring her home for periodic visits. Id.
A Due Process Hearing was scheduled for October 29 and -30, 1998, pursuant to the IDEA, 20 U.S.C. § 1415®. Complaint ¶ 18. A mediation was scheduled for September 28, 1998, pursuant to the IDEA, 20 U.S.C. § 1415(e). At the .mediation, the Ostbys and the District entered into a Final Mediation Agreement (“Agreement”) under which the District agreed to pay for the retroactive and prospective costs of Elise’s placement at the Provo Canyon School, including the costs of travel to and from the school for initial placement and visitation. VCBH agreed to pay the established mental health rate for Provo Canyon school and to authorize Social Services to pay for Elise’s room and board there from June 29, 1998 onward. Complaint ¶ 20. The Agreement was in writing, was signed by the parties and by the mediation officer assigned to the case and was filed with the Special Education Hearing Office. Id.
The parties agreed that the issue of attorney’s fees was not resolved,, and that the Ostbys would submit to the District an
Apparently, the Ostbys did not accept the District’s offer. On September 27, 2001, the Ostbys filed suit for attorney’s fees and costs under the IDEA. The District now moves for judgment on the pleadings on the grounds that: (1) the Ostbys are not entitled to fees because they are not “prevailing parties” within the meaning of the attorney’s fees provision of the IDEA; and (2) the Ostbys’ suit is barred by the statute of limitations. The Court concludes that neither of these arguments has merit, and accordingly DENIES Defendant’s motion.
III.
DISCUSSION
A. Standards Governing Motion for Judgment on the Pleadings
After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. Fed.R.Civ.P. 12(c). A judgment on the pleadings is appropriate when, even if all the allegations in the complaint are true, the moving party is entitled to judgment as a matter of law.
Westlands Water District v. Firebaugh Canal,
B. The Ostbys are the “Prevailing Party” Within the Meaning of the IDEA’S Attorney’s Fees Provision
The IDEA seeks to “ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” 20 U.S.C. § 1400(d)(1)(A). The “IDEA guarantees parents of disabled children considerable and detailed procedural rights. Parents are entitled to an opportunity to participate in the identification, evaluation, and placement process.”
Johnson v. District of Columbia,
“Included in this right to participate is the right to file complaints. IDEA gives parents an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of this child, or the provision of a free appropriate public education to such child.”
Id.
(citing § 1415(b)(6)). “Parents who file such complaints are entitled to an ‘impartial due process hearing.’ ”
Id.
(quoting 20 U.S.C. §§ 1415(f)(1)). At the due process hearing, the IDEA guarantees parents the right to be “accompanied and advised by counsel”, as well as “the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.”
Id.
(citing 20 U.S.C. § 1415(h)). “Parents ‘aggrieved by” a hearing officer’s findings and decision may bring a civil action in either state or federal court without regard to the amount in controversy.”
Id.
(quoting 20 U.S.C. § 1415(f)(2)). “Furthermore,
The District argues that after the Supreme Court’s decision in
Buckhannon Bd. & Care, Home, Inc. v. West Virginia Dep’t of Health and Human Resources,
In
Buckhannon,
the Court held that the term “prevailing party,” as used in various federal fee-shifting statutes, requires a “material alteration of the legal relationship of the parties.”
Id.
at 604,
In
Bennett,
the state of Hawaii held an election to decide whether to hold a constitutional convention.
After the Ninth Circuit issued the stay, the Hawaii Legislature voluntarily passed a bill providing for a second vote on the constitutional convention question. Id. at 1100. Passage of the bill mooted the lawsuit, which was still pending before the appeals court 'on plaintiffs’ m'otions for rehearing and rehearing en banc. Id. Plaintiffs moved for attorney’s fees under 42 U.S.C. § 1988 (the Civil Rights Attorney’s Fees Awards Act of 1976) on the theory that their lawsuit had been a catalyst in the Hawaii Legislature’s passage of the bill to require a second election.
Applying
Buckhannon,
the Ninth Circuit held that the plaintiffs were not the “prevailing party” within the meaning of § 1988 because they had not obtained a “material alteration of the legal relationship of the parties” in their favor.
Id.
at 1101 (citing
Buckhannon,
In contrast to
Bennett
is
Barrios v. California Interscholastic Federation,
The Ninth Circuit held that Barrios was the “prevailing party” because he entered into a legally enforceable settlement agreement against the CIF.
Id.
at 1134. The court explained that “ ‘a plaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’ ”
Id.
(quoting
Fischer v. SJB P.D. Inc.,
In a footnote, the Ninth Circuit in
Barrios
held that its conclusion was “unaffected” by
Buckhannon
because Barrios did “not claim to be a ‘prevailing party’ simply by virtue of his being a catalyst of policy change; rather, his settlement agreement affords him a legally enforceable instrument, which under
Fischer,
makes him a ‘prevailing party.’ ”
Id.
at 1134 n. 5. The Ninth Circuit noted the “dictum” in
Buck-hannon
“suggesting] that a plaintiff ‘prevails’ only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree.”
Id.
(citing
Buckhannon,
About a week after the Ninth Circuit decided
Barrios,
the Second Circuit reached an opposite conclusion in
J.C. v. Regional Sch. Disk 10, Bd. of Educ.,
The Board scheduled a PPT. meeting and agreed to order an independent psychological evaluation for the child.
Id.
Eventually, the Board determined that the
The parents then sought attorney’s fees from the Board on the ground that their child was the “prevailing party” within the meaning of the IDEA because he had received all requested relief. The Board refused to pay fees, and the parents brought suit for fees and costs under the IDEA.
The Second Circuit observed that “the IDEA authorizes the award of reasonable attorneys’ fees to the parents of a child with a disability who is the prevailing party.”
Id.
at 123 (citing 20 U.S.C. § 1415(i)(3)(B)). The court then observed that although
Buckhcmnon
dealt with the fee-shifting provisions of the ADA and the Fair Housing Amendments Act of 1988 (“FHAA”), “the decision expressly signaled its wider applicability.”
Id.
Specifically, the term “prevailing party” should be consistently interpreted “under any given fee-shifting statute ... ‘in which Congress has authorized an award of fees to a prevailing party.’”
Id.
(quoting
Hensley v. Eckerhart,
Applying Buckhannon, the Second Circuit then proceeded to conclude that the plaintiffs were not entitled to attorney’s fees because they had not obtained a “judicially sanctioned” change in the parties’ legal relationship. Id. at 125. The plaintiffs argued that “the IEP is more of a judicial consent decree than a private settlement ... because it is required by statute for all disabled children and because it is legally binding on the school board.”. Id. The court disagreed, however, because the fact that the IEP “is required by statute only distinguishes it further from a judicial order or decree.” Id. 3
Thus, in the Ninth Circuit, unlike in the Second Circuit,- a plaintiff who obtains a private settlement against a defendant is a “prevailing party” for purposes of federal fee-shifting statutes.
Barrios,
Here, assuming the allegations in the complaint to be true, the Osbtys are the “prevailing party” for purposes of the IDEA’S fee-shifting statute because, as in Barrios, they obtained a private settlement against the District that is legally enforceable in court. This case is unlike Bennett, where the plaintiffs did not obtain a settlement, and the only theory they asserted in support of attorney’s fees was that they had been a “catalyst” in the legislature’s decision to hold a new election. The Ostbys are not proceeding solely on a catalyst theory. As in Barrios, the Ostbys obtained “a legally enforceable instrument” against the District. Therefore, Defendant’s motion for judgment on the pleadings on the ground that Plaintiffs are not a “prevailing party” is DENIED. 4
C. Statute of Limitations
The District also moves for judgment on the pleadings on the ground that Plaintiffs’ suit for attorney’s fees is barred by the statute of limitations. The District contends, and the Plaintiffs do not dispute, that the cause of action for attorney’s fees accrued on September 28, 1998, when the underlying due process hearing was concluded by way of dismissal after a settlement was reached. Plaintiffs filed their complaint on September 27, 2001, a day short of three years after Defendant claims the limitations period began. Plaintiffs contend that the applicable limitations period is three years. Defendant contends that the applicable limitations period is ninety days. For the following reasons, the Court agrees with the Plaintiffs that the limitations period is three years.
The IDEA specifies no limitations period governing a plaintiffs suit for attorney’s fees.
See
20 U.S.C. § 1415(i)(3)(B);
Zipperer v. Sch. Bd. Of Seminole County,
The issue of which California statute of limitations applies to an action for attorney’s fees under the IDEA has not yet been addressed by the Ninth Circuit. In
Powers,
the Seventh Circuit addressed this precise question in the context of an IDEA case that arose in Indiana. In attempting to characterize the “essence of the claim” for fees under the IDEA, the court noted the “unique problem in that it that it may arguably be characterized as either an independent cause of action under § 1415(e)(4)(B), or as ancillary to the judicial review of the administrative decision on educational placement. In other words, the attorneys’ fees claim could simply be
If a claim for attorney’s fees is considered an independent claim, it “is arguably analogous to a tort action seeking money damages, which usually carries a comparatively long statute of limitations.” Id. (citations omitted). “If viewed as part of the administrative review of the underlying education dispute, however, the claim for attorneys’ fees is more analogous to statutes dealing with judicial'review of state agency decisions. The limitations period for such agency review is generally quite short.” Id. (citation omitted).
The Seventh Circuit ultimately concluded that a claim for attorney’s fees under the IDEA is ancillary to the underlying education dispute, and it applied the thirty-day Indiana state law limitations period governing judicial review of an administrative decision in a special education matter.
Id.
at 556-57. The court reasoned that it was more appropriate to apply a shorter limitations period because “ ‘[i]n awarding attorneys’ fees, the district court must review not only proceedings in its- own court but also proceedings in a state administrative environment,’ and that a return to such a ‘quagmire months after adjudication of the merits would result in a needless expenditure of judicial energy.’ ”
Id.
at 556 (quoting
Dell v. Bd. Of Educ., Township High Sch. Dist.,
In
Zipperer,
the Eleventh Circuit rejected the Seventh Circuit’s reasoning, and, in accord with decisions of four district courts around the country, decided instead to apply a longer limitations period to a claim for attorney’s fees under the IDEA.
Zip-perer,
The
Zipperer
court addressed “whether adoption of a four-year statute of limitations is inconsistent with the policies of the IDEA.”
Id.
at 851. It “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.”
Id.
(citation and internal quotation marks omitted). “Nonetheless,” the court reasoned, “the resolution of claims for attor
More recently, in a divided opinion, the Sixth Circuit joined the Seventh Circuit in concluding that a claim for attorney’s fees under the IDEA is ancillary to the administrative proceedings, and therefore the most analogous state limitations period is that governing review of agency decisions.
King v. Floyd County Bd. of Educ.,
Although the Ninth Circuit has not yet ruled on the precise question presented in this case, it has ruled on a similar question in an IDEA case. In
Dreher v. Amphitheater Unified Sch. Dist.,
The Ninth Circuit decided to apply to one-year limitations period. First, it observed that the parents were not granted a due process hearing, “so their action is not analogous to an appeal of a final administrative decision.” Id. Second, “a longer statute of limitations in this case is consistent with federal policies.” Id. Although Congress desired swift resolution of administrative decisions so that a child’s education is not in flux, “Kristy’s education is not threatened by the duration of this claim for reimbursement, and the federal policy requiring swift resolution does not apply.” Id.
The Court finds the reasoning of Dreher to be persuasive here. As in Dreher, Elise’s education was not and is not threatened by the duration of this claim for attorney’s fees, and the federal policy requiring swift resolution does not apply. Moreover, if the Ninth Circuit found that the action in Dreher — a challenge to a refusal to provide a due process hearing— was not analogous to judicial review of an administrative decision, then the Ninth Circuit probably would also find that an action for attorney’s fees — over which an administrative agency has no jurisdiction — is also not analogous to review of an administrative decision.
In addition, applying a longer limitations period to a claim for attorney’s fees promotes the policy embodied in the IDEA of protecting the parents’ right to be represented by counsel in seeking an appropriate education for their child. See 20 U.S.C. § 1415(h) (guaranteeing parents the right to be “accompanied and advised by counsel”, as well as “the right to present evidence and confront, cross-examine, and compel the attendance of witnesses.”).
For these reasons, the Court declines to apply the ninety-day limitations period ap
IY.
CONCLUSION
Good cause appearing therefor, Defendant’s motion for judgment on the pleadings 7 is DENIED.
IT IS SO ORDERED.
Notes
. It is unclear from the complaint whether Elise already had an IEP in place at the time the Ostbys attended the December 10, 1997 meeting.
. The court also noted that the settlement agreement expressly reserved the question of attorney's fees to the court, "thus providing sufficient judicial oversight to justify an award of attorneys’ fees and costs.”
Barrios,
. One district court in the District of Colum- ,
bia
has followed
J.C.,
but did so with great reservations.
See Akinseye v. Dist. of Columbia,
. Plaintiffs also argue that because the Agreement itself provides (explicitly or implicitly) that Plaintiffs are entitled to recover fees and costs, the District only reserved the right to argue about the amount of fees and costs, and waived the right to contest the very award of such fees. Because the Court concludes that Plaintiffs are the "prevailing party” for purposes of the IDEA’S fee-shifting statute, it does not reach whether the District waived the right to argue that Plaintiffs are not entitled to fees.
. This section provides, in relevant part: "Nothing in this chapter shall preclude a party from exercising the right to appeal the decision to a court of competent jurisdiction. An appeal shall be made within 90 days of receipt of the hearing decision.” Cal. Educ. Code § 56505©.
. This section provides that the time for commencing an action "upon a liability created by statute, other than a penalty or forfeiture,” is three years. Cal.Code Civ. P. 338(a).
. Docket number 12.