classes without a showing that D.K. could be appropriately educated there." (Id.)
Plaintiff next argues that she is entitled not only to attorneys' fees, but also expert fees, interest accrued on her credit card for payment of the experts, and remuneration for her time spent at the Walnut Street School as D.K.'s aide. (Id. at 9.) In support of her application for attorneys' fees, plaintiff provides her own affidavit setting forth the amount that she was billed for the efforts of her attorney, John Capasso, Esq. (Id. at 10.) It appears that Mr. Capasso has not responded to plaintiff's requests for a certification setting forth his hours spent working on behalf of B.K. and the amounts charged to plaintiff. (Certif. of Rebecca K. Spar, Esq. in Supp. of Pl.'s Mot. for Summ. J. ("Spar Certif.") Ex. B.) Plaintiff also submits the affidavit of her present counsel, which provides her time spent prosecuting this fee application. (Id.) Plaintiff does not, however, provide supporting affidavits of other attorneys concerning what should be considered a reasonable hourly rate.
Defendant opposes plaintiff's motion and has filed its own cross-motion for summary judgment. Defendant argues that (1) plaintiff's fee application is barred by the applicable statute of limitations, (Def.'s Br. in Supp. of Mot. for Summ. J. ("Def.'s Br. in Supp.") at 4); (2) plaintiff is not a "prevailing party" under IDEA, as plaintiff "sought nothing short of full inclusion for D.K." but "failed to obtain this primary goal," (id. at 12), (3) plaintiff's fee claim should be reduced and her claim for expert's fees denied, (id. at 16), and (4) plaintiff is not entitled to reimbursement for services B.K. provided to her own child at the Walnut Street School, nor is she entitled to reimbursement for the interest accrued on her credit card. (Id. at 18.) With respect to plaintiff's prevailing party argument, defendant maintains that the school district had already agreed to the related services set forth in the settlement agreement, and had also agreed to placement in a special education classroom with mainstreaming. (Id. at 12.) Defendant states that the only dispute between the parties was the location of placement, as between the Walnut Street School and the Silver Bay School. However, the district maintains that the ultimate placement remained the same, and that D.K.'s academic subjects are taught in a resource class with only pupils classified as handicapped. (Id.)
A court shall enter summary judgment when the moving party demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once the moving party has satisfied this initial burden, the opposing party must establish that a genuine issue of material fact exists. Jersey Cent. Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109 (3d Cir. 1985), cert. denied, 475 U.S. 1013, 89 L. Ed. 2d 305, 106 S. Ct. 1190 (1986). The opposing party cannot rest on mere allegations; rather, it must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quotation omitted); Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Issues of fact are genuine only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
I. Statute of Limitations Applicable to IDEA Fee Claims
Initially, we must address the threshold question of whether plaintiff's application for attorneys' fees is barred by the applicable statute of limitations. The Stipulation of Settlement was entered by the Office of Administrative Law on March 28, 1995. However, plaintiff's Complaint in this action was not filed until March 11, 1997, nearly two years later. (B.K. Certif. Ex. E.)
IDEA does not establish a statute of limitations for an action either for judicial review of an administrative proceeding or for an application seeking attorneys' fees. Zipperer v. School Bd. of Seminole Cty., 111 F.3d 847, 850 (11th Cir. 1997); Powers v. Indiana Dept. of Educ., 61 F.3d 552, 555 (7th Cir. 1995). "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.'" Zipperer, 111 F.3d at 850 (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355, 115 L. Ed. 2d 321, 111 S. Ct. 2773 (1991)). However, "when the state limitations period applicable to the most analogous state law is inconsistent with the policies of the federal statute, the state limitations period is rejected." Id.
It appears that the issue of which statute of limitations is most analogous and should be applied to an action for attorneys' fees under IDEA has not been decided by the Third Circuit. Moreover, it appears that this is an issue of first impression in our Court. The two circuit courts of appeals which have undertaken to answer the question have reached different conclusions. Compare Zipperer, 111 F.3d at 850 (statute of limitations for action for attorneys' fees is not 30 day time period for appeals from administrative hearings, but is instead the four year statute of limitations for "actions founded on statutory liability") with Powers, 61 F.3d at 555 (finding that 30 day time period for appeals from state administrative agencies applied to attorneys' fee claim under IDEA). Plaintiff argues that we should apply the Third Circuit's decision in Tokarcik v. Forest Hills Sch. Dist., 665 F.2d 443 (3d Cir. 1981), cert. denied, 458 U.S. 1121, 73 L. Ed. 2d 1383, 102 S. Ct. 3508 (1982) to the instant case, and find that a fee application is governed by the two year statute of limitations found in N.J. Stat. Ann. § 2A:14-2. (Pl.'s Br. in Reply at 8-12.) Conversely, defendant urges us to apply the 45 day limitations period applicable to administrative appeals found in N.J. Ct. R. 2:4-1(b). (Def.'s Br. in Supp. at 8.)
Our analysis begins with the Third Circuit's decision in Tokarcik. There the court of appeals addressed the issue of the applicable statute of limitations for an action seeking review of an administrative determination pursuant to 20 U.S.C. 1415(e)(2), as amended, 20 U.S.C. § 1415(i)(2)(A). The underlying dispute between the parties concerned whether Pennsylvania law required school nurses to perform clean intermittent catheterization services to a handicapped child. Tokarcik, 665 F.2d at 445. The parents filed suit in the district court, seeking review of the administrative determination that such services were not required by the Education for All Handicapped Children Act ("EAHCA").
Plaintiffs filed their Complaint ninety days after the state agency rendered its decision on the underlying dispute. Id.
The main issue presented on appeal was whether plaintiff's action pursuant to § 1415(e)(2) was timely filed. Id. The Third Circuit rejected defendant's contention that the applicable statute of limitations was the thirty day statutory limit for appeals from administrative determinations. 665 F.2d at 447. The court found that the proceeding before the district court was in the nature of a de novo proceeding in that the district court could hear evidence not contained in the record and must reach an independent decision based upon the preponderance of the evidence. Id. at 450. Thus, in that manner, the court determined that the statute of limitations applicable to appeals of state administrative hearings was inappropriate, as those appeals involve "restricted court review." Id. More importantly for our purposes, the court also found that applying the thirty day limitations period would "frustrate the statutory policy of cooperative parental and school involvement in placement determination," and was "incompatible with too many of the objectives of the Education Act." Id. at 453. Ultimately, the court held that the applicable statute of limitations was the two or six year period under Pennsylvania law, but declined to state definitively which one applied. Id. at 455.
Defendant argues that the same policy concerns expressed in Tokarcik are not present in the context of a fee application pursuant to 20 U.S.C. § 1415(e)(4)(B), as amended, 20 U.S.C. § 1415(i)(3)(B). Accordingly, defendant argues that we should disregard the reasoning applied in the Tokarcik decision. (Id.) Moreover, defendant points out that court's decision in Tokarcik has been criticized, and asks us to reconsider its precedential value.
(Id.) Conversely, plaintiff argues that we are bound to apply Tokarcik in the context of a fee application.
Initially, we note our agreement with defendant's statement that a fee application pursuant to § 1415(e)(4)(B)
is a distinct proceeding from an action brought pursuant to 20 U.S.C. § 1415(e)(2).
It is clear that the grounds upon which relief may be granted, the nature of the proceedings, and scope of review differ. J.B. v. Essex-Caledonia Supervisory Union, 943 F. Supp. 387, 391 (D. Vt. 1996). Moreover, a court's fee determination is made based upon an "entirely different set of factual and legal questions." Id.; see also Curtis K. v. Sioux Cty. Comm. Sch. Dist., 895 F. Supp. 1197, 1210 (N.D. Iowa 1995). We also note that it does not appear that Tokarcik applies to the instant situation, as it only addressed the applicable statute of limitations in the context of an action brought pursuant § 1415(e)(2).
Nonetheless, we do not agree with defendant's contention that this distinction is dispositive of the issue of whether the 45 day limitations period applies.
Thus, we have turned to other jurisdictions for guidance as to whether to apply a shorter statute of limitations for the initiation of fee applications. We are persuaded by the reasoning employed by the Court of Appeals for Eleventh Circuit in Zipperer. There, the court recognized that IDEA provides two distinguishable causes of action: one under § 1415(e)(2), as amended, § 1415(i)(2) (review of substantive administrative decision), and another pursuant to § 1415(e)(4)(B), as amended, § 1415(i)(3)(B) (independent claim for attorneys' fees). Zipperer, 111 F.3d at 851. The court found that the adoption of a longer statute of limitations in the context of a fee application is consistent with the policies of IDEA. The court stated:
We acknowledge that a short period of limitations for claims brought pursuant to section 1415(e)(2) "assures prompt resolution of disputes over education plans for [disabled children]." . . . Nonetheless, the resolution of claims for attorney's 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 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 appropriate public education for their children.
Id. at 852 (citations omitted). We too agree that the policies of the statute would be furthered by applying a longer statute of limitations to IDEA fee actions. The policy favoring quick decisions regarding the child's placement is simply inapplicable in this context. See Robert D. v. Sobel, 688 F. Supp. 861, 864 (S.D.N.Y. 1988). In other words, applying a longer statute of limitations period does not pose a risk of stranding the child in an inappropriate placement, a concern raised by the dissent in Tokarcik.
See Tokarcik, 665 F.2d at 459 (Rosenn, J., dissenting) (stating that majority's resolution of the statute of limitations issue "may be counterproductive, in the long run, to the educational development of children whose inclusion in or exclusion from a handicapped program is disputed by the child's parents or school authorities"). However, allowing a longer statute of limitations for fee claims would allow enough time for the parties to attempt to agree on the issue of attorneys' fees, and would also encourage parental involvement. Thus, we reject defendant's argument that the 45 day limitations period found in New Jersey Court Rule 2:4-1(b) is applicable.
We must next determine the appropriate limitations period in IDEA fee cases. Again, we have turned to Third Circuit precedent and persuasive authority from other jurisdictions to guide us in making our determination. More specifically, we have reviewed a recent decision by the New Jersey Superior Court, Appellate Division which addressed the issue of the applicable statute of limitations in IDEA fee cases. In J.H.R. v. Board of Education, the court found that an independent action for attorneys' fees must be brought within a reasonable time, and that any time period more than one year is likely to be unreasonable. 152 N.J. 431, 705 A.2d 766, 1998 WL 27237, *14 (N.J. Super. Ct., App. Div., 1998). In J.H.R., the plaintiff instituted an independent action for attorneys' fees approximately four months after achieving success in the underlying suit regarding the proper placement for her severely handicapped child. The court stated that it was guided by equitable principles, and concluded that:
The adoption of a "reasonable time" rule for the institution of independent actions for attorney's fees where there is no underlying action pending or brought pursuant to 20 U.S.C. 1415(b) . . . appropriately harmonizes competing policy considerations. It provides a standard which allows independent actions to proceed forward and protects the rights of the parties under IDEA while at the same time precluding the extension of litigation over too long a period of time.