228 F.3d 622

ENGEL, Circuit Judge,
dissenting.
For the reasons expressed by Judge Hood in his opinion in the district court and for the reasons expressed by the Eleventh Circuit in Zipperer v. School Bd. of Seminole County, FL, 111 F.3d 847 (11th Cir.1997), I would affirm the judgment of the district court. In my opinion the result reached by the majority is unfair, unsympathetic to the evident intent of Congress and entirely at odds with the careful reasoning of Chief Judge Martin in Janzen v. Knox County Bd. of Educ., 790 F.2d 484 (6th Cir.1986).
I agree that we review the district court’s determination of the applicable statute of limitations de novo, Cleveland Heights-University Heights Sch. Dist. v. Boss, 144 F.3d 391, 396 (6th Cir.1998), but that is no reason to abandon an approach which has served us so well in the past.
The majority errs, in my opinion, in at least four respects:
1. The thirty-day limitation is unrealistic and has the effect of chilling rights emphatically created by Congress.
Under Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), and every other case I have seen applying the borrowing principles, the primary consideration is that the limitation adopted must not be inconsistent with the intent of Congress in creating the right in the first place. In playing down this requirement, the majority emphasizes what it concludes is the excessive five year maximum for bringing an action based upon statute, that favored by the Eleventh Circuit and, in Kentucky, by the trial judge here. This to my mind shows a greater concern for the convenience of the state agency than for the handicapped child or their parents. It assumes that because the suit is only for attorney fees that somehow, with expert legal help, it will be a simple matter to apply the thirty-day period borrowed from Kentucky’s administrative rules to commencement of a formal legal action in an entirely different forum. This may sometimes be sufficient, but the thirty-day limit is far too short for the wide variety of circumstances which are bound to arise in the mine run of these cases, even where diligence occurs.
The plaintiffs exercised good judgment and diligence here, even though suit was not commenced until nearly ten months after the “final order.” There was still much to be done after January 17, 1997, and before plaintiffs’ counsel could reasonably conclude that their legal responsibilities could safely be terminated.
2. The thirty-day limitation is unfair to the parties under the facts of this case.
If, as the majority implies (but evidently does not decide), the thirty-day period began to fun from the time of issuance of the decision of January 17, 1997, presumably within thirty days thereafter the parent or representative of the parent or child had to make several critical decisions in addition to computing and marshaling the evidence to justify an original action in another court.
Consider the dilemma of plaintiffs and their attorneys here.
The “final” order of January 17 had first to be analyzed in its nineteen page entirety to determine whether (a) it was in fact a final order, (b) whether the plaintiffs were the prevailing parties and, even if so, (c) whether the order itself was adequate to achieve its intended result. Given the order’s complexity, this was not an easy task. Even assuming this analysis was quickly and satisfactorily accomplished, significant additional work might yet be reasonably necessary under the statutes. Under the terms of the January 17 order:
A. The school district had thirty days (“of receipt of this decision”) in which to decide whether to obey the “stay put” provisions of the January 17 order. Suppose it didn’t?
B. Within the same thirty days the LEA, with the parents’ agreement, was to engage an expert “in the area of autism” whose responsibility was to provide for consultation. Suppose it didn’t or the parents were dissatisfied with the expert engaged, or were not consulted?
C.Within sixty days after the appeals board order, the ARC was ordered to obtain a “comprehensive evaluation” of the student’s autism and determine an appropriate placement for the child. Suppose it didn’t, or compliance was insufficient or inadequate?
The foregoing are only a few of a multitude of considerations which might reasonably occupy counsel’s attention, practical and ethical considerations which must have given pause to counsel here, as they would to any counselor trying faithfully to represent a handicapped child and their family. Thirty days is simply not enough time. It seems almost certain that the ten month delay by counsel here was caused in large part by these concerns. As for the majority’s concern about the five year length allowed by Kentucky law, it stands to reason that only rarely, if ever, will an attorney want to delay five years in seeking to collect attorney fees from a client, or anyone else for that matter, if he can get paid sooner.
3. The haste inevitably generated by a thirty-day limitation will be wasteful for the plaintiffs, the school authorities and for the district court.
With a thirty-day limitation counsel, to protect himself and the clients, will too often be propelled into precipitate litigation which might be resolved peacefully and without recourse to a federal court. Where is the time needed, after totaling up the bill, to negotiate for its settlement out of court? Will not a protective suit at least be needed while negotiations proceed? Who will want to go the Court of Appeals arguing issues of tolling or collateral estoppel if for any reason settlement cannot be reached in thirty days? And will not board approval itself, once a tentative agreement is reached, be necessary to finalize it? Can this possibly still be resolved before the thirty days runs out? And why crank up the entire and often ponderous machinery of a federal court if there is a reasonable chance to avoid it altogether?
4. The majority opinion ignores highly persuasive authority already existing in our own circuit and misses the essential differences between administrative and formal court proceedings with respect to time allowances recognized in Jamen v. Knox County Bd. of Educ., 790 F.2d 484 (6th Cir.1986).
It is probably incorrect to argue that the majority is precluded by stare decisis from departing from a well established rule of the circuit without en banc hearing. As the majority correctly notes, the particular rights involved are different in each case. Nevertheless, the inherent good sense and legal reasoning of Jamen should persuade us to follow its principles and apply them here.
It has always seemed to me that in borrowing state limitation periods one of the most important considerations is the nature of the forum in which the cause of action is to be litigated. Janzen recognized this critical element.
Normally, administrative proceedings are less formal, and public policy favors a more speedy resolution of them so that the parties may get on with their business. More formal proceedings allow greater time in which to commence them. Kentucky law appears to favor this by the distinction which it makes between the statute of limitations in appeals from administrative agencies and those more formal ones which are expected to be litigated in the state’s courts of general jurisdiction. This is reflected by its short limitation for administrative proceedings and its much longer five-year limitation in general actions upon statutes.
I suspect that most of us, as an original matter, would conclude with the majority that five years is too long a time in which to permit an action for attorney fees, that a suit by that time would usually be pretty stale. What to me is more important, however, is a thirty-day statute is too grudging, especially given the ameliorative objectives of the Education of the Handicapped Act (“EHA”) and its subsequent amendments, resulting in what is known today as the Individuals with Disabilities Education Act (“IDEA”).
If the right to recover attorney fees were to be decided in the first instance by the administrative agency itself, I might agree with the majority here. It does not and for the very good reason: the agency does not have the power itself to enforce the right. It can only determine who was and who was not the prevailing party.
If there were some cogent reason for applying so grudging a rule, I might be inclined to it, but there is not. There is no question of disturbing the decision of the administrative agency for, if it is final, then nothing in the impending district court action impedes its progress. There is no burden upon the administrative agency to retain jurisdiction pending the attorney fees litigation. There is no delay in the relief, for it is already ordered. The case therefore reduces itself to an ordinary lawsuit for attorney fees not unlike hundreds of other suits under statute or common law contract for which limitations are normally much more extended.
By adopting the majority view we would be flattering ourselves to think that the attorney for the prevailing party will consider applying to a federal court as child’s play requiring only thirty days to contemplate and to commence. The vast majority of working attorneys, especially in the areas of historically local and family concern, will rarely if ever recourse to the more remote and forbidding temples of federal law. In the common parlance, “making a federal case” implies exactly that. Federal court may be home to us but not to the ordinary lawyer who ■ can be expected to handle most of these cases.
In 1975 Congress amended the EHA through enactment of the Education for All Handicapped Children Act, Pub.L. 94-142, 89 Stat. 773 (1975). Congress sought to ensure that the states would provide all disabled children with a “free appropriate public education.” The Supreme Court’s 1982 decision in Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), examined the EHA’s statutory-predecessors, the structure and purpose of the Act, as amended, and the nature of the cause of action it created. “Congress found that of the roughly eight million handicapped children in the United States at the time of enactment, one million were ‘excluded ■ entirely from the public school system’ and more than one half were receiving an inappropriate education.” 458 U.S. at 189, 102 S.Ct. 3034 (quoting Pub.L. 94-142, § 3(b)(4), 89 Stat. at 774). The Supreme Court found that the EHA “evinces a congressional intent to bring previously excluded handicapped children into the public education systems of the States and to require [in exchange for federal funding that] the States adopt procedures which would result in individualized consideration and instruction for each child.” 458 U.S. at 189, 102 S.Ct. 3034. “[T]he Act guarantees to parents the right to participate in the development of an ‘individualized education program’ (IEP) for their handicapped child, and to challenge the appropriateness of their child’s IEP in an administrative hearing -with subsequent judicial review.” Dellmuth v. Muth, 491 U.S. 223, 225, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989).
The 1975 EHA amendments created the right to bring a civil action challenging the findings or decision of the state administrative agency to any state court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy. Pub L. 94-142, § 615, 89 Stat. at 789 (codified at 20 U.S.C. § 1415(e)(2)). The Supreme Court in Rowley acknowledged the concurrent jurisdiction of the state courts.
[T]he Act permits any party aggrieved by the findings and decision of the state administrative hearings “to bring a civil action” in “any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” § 1415(e)(2). The complaint, and therefore the civil action, may concern “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education of such child.” § 1415(b)(1)(E).
Rowley, 458 U.S. at 204-05, 102 S.Ct. 3034; see also Dellmuth, 491 U.S. at 228, 109 S.Ct. 2397.
In Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984), the Supreme Court found that the EHA, as amended, created the substantive right to a free appropriate public education and an elaborate and exclusive procedural mechanism to protect that right. The EHA did not include any express provision allowing for recovery of attorneys fees in the EHA. The Supreme Court inferred that this omission represented a balance struck by Congress between the handicapped individual’s rights and the financial burden imposed upon the states by the responsibility of providing education for handicapped children. 468 U.S. at 1020, 104 S.Ct. 3457. The Court found that “a plaintiff may not circumvent or enlarge the remedies available under the EHA by resort to § 504 [of the Rehabilitation Act].” 468 U.S. at 1021, 104 S.Ct. 3457.
In response to Smith v. Robinson, Congress created an express federal cause of action for attorneys fees. On August 5, 1986, President Ronald Reagan signed into law the Handicapped Children’s Protection Act of 1986 (HCPA), which created the cause of action for recovery of the attorneys fees which is at the heart of this case. Pub.L. No. 99-372, § 2, 100 Stat. 796 (1986). In the words of the Fifth Circuit, “Congress read the Supreme Court’s decision in Smith and acted swiftly, decisively, and with uncharacteristic clarity to correct what it viewed as judicial misinterpretation of its intent.” Fontenot v. Louisiana Bd. of Elementary & Secondary Educ., 805 F.2d 1222, 1223 (5th Cir.1986). Whatever we might think about the wisdom of the amendment, or adding further caseload .to the federal docket, or other more salutary remedies than that provided by Congress, I do not believe we may so restrict and thus frustrate the evident intent of Congress by this narrow limitation.

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