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Burr v. Ambach

decided: December 12, 1988.

CLIFFORD BURR, BY HIS PARENTS AND NEXT FRIENDS, KENNETH BURR, BETTY BURR, PLAINTIFFS-APPELLANTS,
v.
GORDON AMBACH, AS COMMISSIONER OF THE NEW YORK STATE EDUCATION DEPARTMENT, DEFENDANT-APPELLEE



Appeal from two orders of the United States District Court for the Southern District of New York, Robert L. Carter, J., one affirming the New York State Commissioner of Education's decision refusing to grant appellant compensatory education under the Education of the Handicapped Act, and the other declining to award attorney's fees to appellant from the Commissioner. Reversed in part and dismissed in part.

Feinberg, Chief Judge, Newman and Leonard I. Garth,*fn* Circuit Judges.

Author: Feinberg

FEINBERG, Chief Judge:

Clifford Burr, by his parents and next friends Kenneth Burr and Betty Burr, appeals from two orders of the United States District for the Southern District of New York, Robert L. Carter, J., dismissing plaintiff's claims under the Education of the Handicapped Act, 20 U.S.C. § 1400 et seq. (hereafter "EHA" or "the Act"), and denying recovery of attorney's fees from the New York State Commissioner of Education, defendant in this case. For reasons given below, with respect to the first order, we reverse the judgment of the district court; with respect to the second order, we dismiss the appeal.

Background

Appellant Clifford is a severely handicapped young man, now 20 years old. Until four years ago, Clifford attended a private school for blind and retarded youngsters at public expense, in accordance with the state's responsibility under the EHA to provide a "free appropriate public education" to all handicapped youngsters up to the age of twenty-two. See 20 U.S.C. § 1412(1). The school closed in June 1984. Pursuant to his statutory obligation to place handicapped students in schools, N.Y. Educ. L. § 4201(2)(c), the Commissioner referred Clifford to the New York Institute for the Education of the Blind (hereafter "the Institute"), a state-supported school. The Institute rejected Clifford, claiming that Clifford would not benefit from its program because he needed "habilitation," or training in life skills, for the mentally retarded and had no academic potential. In notifying the Burrs of Clifford's disqualification for its school, the Institute failed to mention its Frampton Hall program for those with multiple handicaps.

Thereafter, Clifford's parents requested a hearing under 20 U.S.C. § 1415(b)(2), to review the Institute's rejection. The hearing officer, who was designated by the New York State Department of Education pursuant to 8 N.Y.C.R.R. § 200.7(d), decided that Clifford should be placed in the Institute. However, the hearing officer took 13 months from the time the Burrs requested a hearing to reach a decision, despite federal and state regulations requiring that hearings be completed much more promptly. Attributing fault for the delay to himself as well as to both parties, the hearing officer awarded Clifford one and one-half years of compensatory education beyond age twenty-one to make up for the education lost from the time of the closing of Clifford's school in June 1984 until the hearing officer's decision on January 27, 1986. The hearing officer notified both sides of their right to appeal his decision to the Commissioner. See 8 N.Y.C.R.R. § 200.7(d)(1) and 200.5(d).

The Institute appealed to the Commissioner, and Clifford remained out of school during the appeal. On May 20, 1986, the Commissioner affirmed the hearing officer's decision to place Clifford at the Institute, but reversed the award of compensatory education because the EHA does not authorize an award of compensatory education beyond the age of 21. Clifford was admitted to the Institute in June 1986, and is presently a member of its Frampton Hall Program.

Pursuant to 20 U.S.C. § 1415(e)(2), Clifford appealed to the district court in September 1986, claiming that the delays in the hearing process violated his right under the Act to a due process hearing, and caused him to lose nearly two full academic years of "free appropriate public education. " Clifford also requested attorney's fees from the Commissioner pursuant to 20 U.S.C. § 1415(e)(4)(B). The district court, in an opinion dated November 9, 1987, granted the Commissioner's motion to dismiss the due process claim. In December 1987, plaintiff filed a notice of appeal to this court challenging that decision, although no judgment had then been entered. The parties entered into a stipulation on February 2, 1988, which was so ordered by the court, withdrawing the appeal without prejudice to reinstatement under the conditions set forth in the stipulation. On March 9, 1988, the district court denied plaintiff's claim against the Commissioner for attorney's fees, holding that the Institute -- not the Commissioner -- was the adverse party in the administrative proceedings. 683 F. Supp. 46 (S.D.N.Y. 1988). In that opinion, the district judge also granted plaintiff leave to file an amended complaint seeking attorney's fees from the Institute for services in the administrative proceedings, and directed entry, under Rule 54(b) of the Federal Rules of Civil Procedure, of a final judgment for the Commissioner on all of plaintiff's claims against him. That judgment was entered on March 18, 1988, and appellant filed a new notice of appeal shortly thereafter.

Jurisdiction

The first question that we must decide is whether we have jurisdiction to hear both aspects of this case. When we first considered the case, we thought that, because of the complicated procedural history set forth above, there might be a jurisdictional problem based on lack of timeliness with respect to the due process issues decided in the November 9 order. We therefore asked the parties to brief those issues as well as the propriety of the Rule 54(b) certification. After further consideration, however, we conclude that we do have jurisdiction over the due process issues.

The question whether we have jurisdiction over the attorney's fees claim requires further discussion. The Commissioner argues that the district court abused its discretion in entering judgment with respect to plaintiff's claim for fees against him and in certifying for appeal the attorney's fees issue pursuant to Rule 54(b). Accordingly, the Commissioner asks us to dismiss that portion of the appeal. A district court's exercise of discretion in certifying a claim under Rule 54(b) is reviewable by this court, Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 100 L. Ed. 1297, 76 S. Ct. 895 (1956), and if the district court abused its discretion, then this court is without jurisdiction to hear the appeal, Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir. 1978). One requirement of a proper Rule 54(b) certification is a statement of reasons explaining why "there is no just reason for delay"; mere repetition of the conclusory language from the Rule will not suffice where the justification for the certificate is not apparent. See Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir. 1976); Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974). In this case, even though the attorney's fees issue against the Institute will still be tried in the district court, the district judge gave no adequate explanation as to why the fees issue as to the Commissioner should be certified.

We have often said that certification under Rule 54(b) should not be made routinely or as an accommodation to counsel. See Brunswick, 582 F.2d at 183. If plaintiff would suffer hardship or injustice if he had to try his claim against the Institute before appealing denial of his claim for fees against the Commissioner, then certification was appropriate. See Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 941 (2d Cir. 1968). But we do not see how deferral of an appeal regarding the attorney's fees claim against the Commissioner harms plaintiff. Plaintiff is limited to a single recover of attorney's fees in this case; if he recovers from the Institute, then there will be no need for an appeal against the Commissioner. Where there is a single claim for relief, certification under Rule 54(b) is improper, Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 743, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1976); Rabekoff v. Lazere & Co., 323 F.2d 865, 866 (2d Cir. 1968), and in this case, plaintiff has only one claim for attorney's fees, and will be satisfied if he prevails against either party. As this court said in Arlinghaus, "The mere existence of multiple parties and the dismissal of some do not afford sufficient warrant for entry of final judgment under Fed. R. Civ. P. 54(b) . . ." 543 F.2d at 463. A decision now on plaintiff's appeal on the claim against the Commissioner for fees may prejudice the Institute, which is before us only as amicus curiae, and not as a party. Gumer, 516 F.2d at 286. It would be most economical and fair for us to wait and determine the respective rights of all three interested parties at one time. For all of these reasons, we believe that the district judge exceeded his discretion in concluding that the attorney's fees issue vis-a-vis the Commissioner should come to this court before the district court determines the same issue against the Institute. We agree with the Commissioner that the Rule 54(b) certification was improvidently granted in this respect, and we lack jurisdiction to entertain the fees order.

On the other hand, we do have jurisdiction to decide the merits of the due process claim and the appropriate remedy for a violation. There is no reason to delay the appeal of the order concerning the compensatory education issue. That issue is completely separate from the attorney's fees claim to be litigated against the Institute in the district court. In addition, Clifford and his family would suffer serious hardship if the compensatory education claim were not determined now because they would not know until after the fee litigation ends if they must find adult placement for Clifford in anticipation of his fast-approaching twenty-first birthday. Even if the attorney's fees issue is eventually appealed to this court, entertaining an appeal on the merits of the due process claim now will not ...


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