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MARY P. v. ILLINOIS STATE BD. OF EDUC.

July 25, 1996

MARY P. AND PETER P., on their own behalf and as parents and next friends of MICHAEL P., a minor, Plaintiffs,
v.
ILLINOIS STATE BOARD OF EDUCATION, ROBERT LEINENGER, MARY JANE BRONCATO, GAIL LIEBERMAN, TERRY DAVID, CHARLES DONEGAN, ROGER GARVELINK, and BOARD OF EDUCATION OF DOWNERS GROVE GRADE SCHOOL DISTRICT NO. 58, Defendants.



The opinion of the court was delivered by: LEINENWEBER

 Plaintiffs Michael P. and his parents brought the present action to force defendant Downer's Grove Grade School District to provide special education services to Michael. After four years of administrative and legal proceedings, plaintiffs finally prevailed when the court entered summary judgment for plaintiffs on March 20, 1996, awarding them reimbursement of their out-of-pocket expenses and attorney's fees. See Mary P. v. Illinois Bd. of Ed., 919 F. Supp. 1173 (N.D. Ill. 1996). Plaintiffs now bring a motion to alter or amend judgment under Fed. R. Civ. P. 59(e).

 BACKGROUND

 In 1990, Michael was diagnosed with a speech impairment. On April 3, 1991, plaintiffs contacted the school board and requested speech therapy and were told Michael could have a "pre-screening evaluation." Admin. R. at 710-11. The school board's speech therapist conducted the evaluation on April 9, 1991 and concluded that Michael did not require the school's speech therapy services. Admin. R. at 1212. It is unclear from the record whether plaintiffs contacted the school in the months following April 9, 1991, although they testified, "We knew we weren't going to get help from the school so we got it privately." Admin. R. at 719. Plaintiffs apparently obtained private speech therapy services which their medical insurance paid. Admin. R. at 1051.

 Plaintiffs prevailed at the level 1 due process hearing, but defendants obtained a reversal at the level 2 due process hearing. Plaintiffs appealed the level 2 decision to the court.

 On March 20, 1996, the court awarded plaintiffs reimbursement of out-of-pocket expenses for all speech therapy services they provided Michael not in excess of 30 minutes per week. 919 F. Supp. at 1181-82. The original award covered expenses from the time plaintiffs first filed for administrative review of the school board's denial of services in February 1993 through the date of the order. Id.

 Plaintiffs now request that the court amend its order awarding reimbursement for expenses beginning April 3, 1991, the date they first requested speech therapy for Michael.

 ANALYSIS

 A motion to alter or amend a judgment under Rule 59(e) must be made within 10 days from the entry of judgment. Fed. R. Civ. P. 59(e). However, "Rule 59(e) is . . . applicable only to a final judgment." Fayetteville Investors v. Commercial Builders, 936 F.2d 1462, 1469 (4th Cir. 1991). Rule 59(e) applies to final judgments which include "a decree and any order from which an appeal lies." McCowan v. Sears, Roebuck and Co., 908 F.2d 1099, 1103 (2d Cir. 1990) (quoting 6 Moore's Federal Practice P 54.02 at 54-23 (2d ed. 1988)).

 Defendants argue that Plaintiffs' Rule 59(e) motion to amend was not timely because it was not made within 10 days of the judgment from the court. However, the judgment issued by the court on March 20, 1996 was not a final judgment. See Minute Order, Mary P. v. Illinois St. Bd. of Ed., 934 F. Supp. 989, 1996 U.S. Dist. LEXIS 10626, (N.D. Ill. 1996). Therefore, plaintiffs' motion to alter or amend is timely.

 Turning to the substance of the motion, plaintiffs seek reimbursement for speech therapy beginning April 9, 1991, the date they first were denied speech therapy for Michael. Plaintiffs' brief fails to cite a single legal authority which provides a basis for their argument. Defendants argue that insurance coverage which plaintiffs received obviates any reimbursement for that period. However, their brief similarly neglects to include a single citation to rebut plaintiffs' argument.

 Nonetheless, the court's mandate is clear. The court must take "equitable considerations" into account in deciding what relief should be granted. Burlington Sch. Comm. v. Department of Ed., 471 U.S. 359, 374, 105 S. Ct. 1996, 2005, 85 L. Ed. 2d 385 (1985).

 Two cases illuminate the relevant equitable considerations. In Ivan P. v. Westport Bd. of Ed., 865 F. Supp. 74 (D. Conn. 1994), parents were reimbursed from the date they placed their son in a private special education program rather than from the start of due process hearings. The court in Ivan P. reasoned that the parents' failure to immediately request a due process hearing while they tried to resolve the problem in meetings with the school did "not deprive [plaintiff] of his right to a free and appropriate education under the IDEA. It is ...


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