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MILITELLO v. BOARD OF EDUC. OF UNION CITY

August 13, 1992

VIRGINIA MILITELLO Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY OF UNION CITY Defendant.



The opinion of the court was delivered by: HAROLD A. ACKERMAN

 ACKERMAN, District Judge:

 This matter comes before the court upon a motion by plaintiff, Virginia Militello, for an order reversing the determination of the Magistrate Judge filed in this matter on January 7, 1992. In that order, the Magistrate denied plaintiff's request for a transcript, to be paid for by the federal government, of proceedings on this matter before the New Jersey Office of Administrative Law. For the reasons articulated below, I respectfully reverse the Magistrate's decision and find for the plaintiff.

 BACKGROUND

 Ms. Militello is a single woman who receives public assistance and has no other income. She is the mother of a six year old, educationally handicapped child, Dawn. In July, 1991, the Board of Education of the City of Union proposed an Individual Educational Program ("IEP") for Dawn for the 1991-1992 school term. The proposed IEP classified Dawn as neurologically impaired and proposed a placement for her within the Union City school district. Ms. Militello felt that the placement was not appropriate and sought review of the Union City Board of Education's recommended classification and placement of her child. At an administrative hearing on this issue before the New Jersey Office of Administrative Law, an Administrative Law Judge ("ALJ") upheld the school board's decision. Dissatisfied with the outcome of the administrative proceeding, the plaintiff appealed the ALJ's decision to this court. *fn1" For the purpose of facilitating Ms. Militello's appeals process, the state of New Jersey, pursuant to federal law, *fn2" provided the plaintiff with the electronic record of the hearing.

 At the time Ms. Militello filed her appeal, this court granted her leave to proceed with her claim in forma pauperis, 28 U.S.C. § 1915. The plaintiff then filed a motion with this court pursuant to 28 U.S.C. § 753(f) *fn3" seeking to have the court direct the transcription of the state administrative hearing at the expense of the federal government. *fn4" Pursuant to 28 U.S.C. § 636(b)(1)(A) I referred the matter to the Magistrate Chesler.

 Magistrate Chesler denied the plaintiff's motion on January 7, 1992, finding that there was no statutory authority for him to order the transcription of a state administrative hearing at the expense of the federal government. In her current motion, Ms. Militello contends that the Magistrate took an unduly restrictive view of his statutory authority and argues that his finding was clearly erroneous and should be reversed. The defendant does not oppose Ms. Militello's motion.

 DISCUSSION

 The Federal Magistrates Act of 1968, as amended, 28 U.S.C. § 636 (b)(1)(A), and Local Rule 40A.1 of this district provide that the court can refer certain non-dispositive matters to the magistrate for judgement. Both Local Rule 40D.4(a) and Fed.R.Civ.P. 72(a) state that on appeal, the standard of review as to non-dispositive motions is whether the Magistrate's ruling was "clearly erroneous or contrary to law." See e.g. Curley v. Cumberland Farms Dairy, Inc., 728 F.Supp. 1123, 1141 (D.N.J. 1989); Ahuja v. Laird, 693 F.Supp. 197, 200 (D.N.J. 1988). After review, the District Judge may accept, reject or modify in whole or in part any finding by the Magistrate to which objection has been taken. Local Rule 40C.2. I now turn to the merits of this motion.

 Part III of Title 28, which contains section 753(f), provides in relevant part that "fees for transcripts furnished in other proceedings to persons permitted to appeal in forma pauperis shall . . . be paid by the United States if the trial judge or circuit judge certifies that the appeal is not frivolous (but presents a substantial question)" (emphasis added). The Magistrate reasoned that since section 753 is contained in the part of the United States Code relating to court officers and employees of United States courts, the phrase "other proceedings" refers only to proceedings in the district court. Therefore, he found that the statute did not provide him the authority to grant the plaintiff's motion because the phrase "other proceedings" does not encompass proceedings before an ALJ. I disagree.

 There are several reasons why this Court has the authority to grant the plaintiff's request. First, the language of statute itself and the word "proceedings", as it has been defined in other contexts, clearly indicates that this Court has the discretion to provide written transcripts at the federal government's expense. Second, the policies of the statute as well as two Circuit Court decisions support an expansive view of the statute, while no cases support a restrictive view. Lastly, a restrictive interpretation of section 753 defeats the purpose behind the related in forma pauperis statute which allows indigent litigants with nonfrivolous claims to proceed in forma pauperis. I will address the above reasons in turn.

 The language of the statute itself reveals that section 753 does not expressly make any distinction between state and federal proceedings, but rather refers simply to "other proceedings." This general language requires me to interpret the word "proceedings".

 In another context, the Third Circuit has construed the term "proceeding" to include "decisions affecting the substantive rights of litigants to an actual case or controversy. " United States v. Sciarra, 851 F.2d 621, 635 (3d Cir. 1988). In this case, Ms. Militello's substantive rights are certainly affected. Therefore, I believe that the definition of "proceeding" used in Sciarra should be adopted here.

 Second, the Magistrate's decision conflicts with the policies of the statute and the only precedent available. Where the language and structure of a statute fail to fully reveal its scope, it is appropriate to turn to the statute's underlying purpose. See Bell v. United States, 754 F.2d 490 (3d Cir. 1985); Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941 (2d Cir. 1975). In this instance, it is clear that the statute is aimed at alleviating the disparity that exists as a result of a litigant's financial situation. In ...


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