Opinion
CIVIL ACTION NO. 2:09cv752-MHT (WO).
March 29, 2010
ORDER
After and independent and de novo review of the record, it is ORDERED as follows:
(1) The objections (doc. nos. 18 and 20) are overruled.
(2) The magistrate judge's recommendation (doc. no. 17) is adopted.
(3) Defendants' motion to dismiss (doc. no. 7) is granted as to plaintiffs' claims against defendants Alabama State Department of Education, Erika Tatum, Wesley Romine, John Dilworth, Clay Slagle, and Joseph Morton, and said defendants are dismissed without prejudice.
(4) Said motion to dismiss is denied as to defendant Montgomery County Board of Education.
It is further ORDERED that this cause is referred back to the magistrate judge for further appropriate proceedings.
* * *
The court adds these comments.
Statute of Limitations: Defendants Montgomery County Board of Education, Erika Tatum, John Dilworth, and Clay Slagle object to the magistrate judge's finding that the plaintiffs' action was timely filed. Instead, they continue to assert the action was not timely filed and thus is barred by the statute of limitations. The defendants' statute-of-limitations argument fails for two reasons. First, the plaintiffs filed an application of financial hardship with their IDEA appeal. While the application was denied on June 24, 2009, the matter was set for reconsideration. Consequently, the hardship request was, in essence, still pending. The defendants leave that critical fact out of both their motion and the objections; instead, they imply that the plaintiffs simply delayed in not paying the filing fee until July 21, 2009. Rather, the plaintiffs chose to pay the filing fee rather than pursue the reconsideration hearing.
Second, despite their assertions to the contrary, an IDEA action which appeals a due-process-hearing decision would be similar to the appellate situation specifically excluded inDe-Gas, Inc. v. Midland Resources, 470 So. 2d 1218 (Ala. 1985). The Alabama Supreme Court specifically exempted the payment of a filing fee as a jurisdictional requirement for perfecting an appeal to the circuit court. De-Gas also relies on the proposition that the purpose behind the requirement to pay a filing fee in initiating an action is to ensure the defendants are aware of the action and the plaintiff has a bona fide intent to pursue to the case. Furthermore, De-Gas is not limited to solely probate appeals. See De-Gas, 470 So. 2d at 1222; see also Smith v. State of Alabama, 660 So. 2d 1320 (Ala. Civ. App. 1995) (stating that Alabama courts have applied De-Gas's holding to various types of administrative appeals). The Smith decision aptly notes that cases dealing with an appeal to the Alabama Circuit Courts are different from original actions when it comes to a jurisdictional prerequisite of paying a filing fee. Id. at 1323-24; see also Finch v. Finch, 468 So. 2d 151 (Ala. 1985);Luce v. Huddleston, 628 So. 2d 819 (Ala. Civ. App. 1993); Rubin v. Dep't of Indus. Relations, 469 So. 2d 657 (Ala. Civ. App. 1985).
In Finch, the Alabama Supreme Court held that payment of the filing fee within the time allowed for appeal of a final settlement of an estate from the probate court to the circuit court was not a jurisdictional requirement for perfecting the appeal. 468 So.2d at 154. In Luce, the court held that the posting of security for costs need not be contemporaneous with the timely filing of the notice of appeal in an appeal from the district court to the circuit court. 628 So. 2d at 820. In Rubin, the plaintiff's claim for unemployment-compensation benefits was denied. 469 So. 2d at 658. Like the present case, the plaintiff in Rubin filed in the circuit court a notice of appeal and an affidavit of substantial hardship, requesting that the docket fee be waived. Because the affidavit was not approved by the circuit judge until after the time for appeal had expired, the defendant argued that the failure to pay the filing fee within the appeal time frame was jurisdictional. The court disagreed and held that, "when claimant presented the notice of appeal and affidavit of substantial hardship to the clerk, the case is deemed to have been filed, notwithstanding that the clerk failed to enter the case on the docket until the judge signed the affidavit." Id.
Finally, nothing in the applicable Alabama Administrative Code provisions enumerates that the payment of a filing fee at the time of filing is jurisdictional. Specifically, Ala. Admin. Code r. 290-8-9-.08(9)(c)(16) states: "The party bringing the civil action must file a notice of intent to file a civil action within 30 days after receipt of the hearing decision. The party must file the civil action within 30 days of the filing of the notice of intent." There is no reference to a jurisdictional prerequisite to pay a filing fee. Rather, the only jurisdictional prerequisite specifically mentioned is the 30-day time-frame for filing a notice of intent followed by a 30-day time-frame to file the civil action. See Smith, 660 So. 2d at 1324 (statute's specific enumeration of jurisdictional matters while omitting reference to filing fees "implies an intention to exclude other requirements not so included."); see also Price v. Time, Inc., 304 F. Supp. 2d 1294, 1301 (N.D. Ala. 2004).
The defendants continue to cite to "Alabama Administrative Code § 290-9-0.08(9)(c)(16)," but the relevant portions they rely on are actually Ala. Admin. Code r. 290-8-9-.08(9)(c)(15) and Ala. Admin. Code r. 290-8-9-.08(9)(c)(16).
Based on the above, the court rejects the defendants' proposition that the statute of limitations has barred the plaintiffs' action.
Failure to Exhaust Administrative Remedies and Failure to Timely Appeal: The plaintiffs assert that they have exhausted administrative remedies as to the remaining defendants. The plaintiffs initially made a due-process complaint on May 5, 2008, against a number of defendants. A due-process hearing was held on June 17 and the decision released on June 23. The plaintiffs did not file a timely appeal relating to that decision in either this court or state court. However, the plaintiffs did file a second due-process-hearing request on August 25. The hearing officer properly advised the parties that the only issues he could consider would be those based on events that occurred since the first decision was released. The second due-process hearing occurred on April 17, and the plaintiffs then filed their appeal.
To the extent the plaintiffs attempt to rely on the first due-process decision, any appeal relating to that decision is untimely and therefore barred by the statute of limitations. However, the second due-process decision did not include the individual defendants or the Alabama State Department of Education. In short, to the extent that they attempt to rely on issues pertaining to the first due-process decision, the plaintiffs may not because they failed to file a timely appeal of that decision. To the extent that they seek to make new claims against those defendants, the plaintiffs failed to exhaust their administrative remedies.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4
Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , 486 U.S. 196, 201, , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , 69S.Ct. 1221, 1225-26, (1949); , 890 F.2d 371, 376 (11th Cir. 1989); , , , , , (1964). Rev.: 4/04 : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).