Handicapped student appeals from orders by Duffy, J., granting the University's motion for summary judgment and denying appellant's motion to vacate the summary judgment order in a lawsuit brought pursuant to § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Supp. IV 1986), for alleged overcharging for student housing.
Van Graafeiland, Altimari, Circuit Judges, and Mukasey, District Judge.*fn*
MICHAEL B. MUKASEY, District Judge:
Appellant Kevin Fleming, a former student at New York University who is handicapped and must use a wheelchair, began this suit in 1985, alleging that the University had overcharged him for his dormitory room during his undergraduate and graduate years, and thus violated § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Supp. IV 1986). Appellant also sought a preliminary injunction requiring the University to issue him his Master of Arts diploma. The district court, in its June 24, 1986 decision, denied the preliminary injunction and granted summary judgment for the University, holding that appellant's claims based on his undergraduate years were time-barred by a three-year statute of limitations, and that he failed to state a claim as to his year of graduate study because he never applied for graduate housing but instead requested and received permission to remain in his undergraduate dormitory. On November 24, 1986, a panel of this Court summarily affirmed the denial of a preliminary injunction. Appellant then moved unsuccessfully to vacate the summary judgment pursuant to Fed. R. Civ. P. 60(b)(3), claiming that it was based on misrepresentation. We now affirm the district court's grant of summary judgment and its denial of appellant's motion to vacate.
Appellant attended the University as an undergraduate from September 1978 until June 1982. Because he has Frederick's Alaxia, a genetic disorder which results in the loss of muscular coordination, and thus must use a wheelchair, he requested single occupancy of a double room ("SOD" in the argot of the University's Housing Office). The University granted his request and altered the room to suit his needs.
From September 1978 until May 1979, Fleming was charged a single rate even though he lived alone in a double room. From September 1979 until June 1982, however, he was charged twice the prior rate because of a change in the University's housing policy. In order to maximize revenue, the University required all students residing alone in double rooms to pay double housing fees.
The New York State Office of Vocational Rehabilitation paid appellant's entire room costs until his final year of undergraduate education, when he had to pay part of his room costs.
In the summer of 1982, Fleming began graduate studies. A counselor in the University's Office of Disabled Student Services suggested he apply for graduate housing, but he asked to stay in his undergraduate residence. Although the University did not usually grant such requests, it made an exception in his case. The University continued to charge him the higher rate, however. In July 1982, Fleming sent a letter of complaint to the Office of Civil Rights of the United States Department of Education (hereafter "OCR") complaining that non-handicapped undergraduates were allowed to live alone in double rooms at single rates while he was forced to pay a higher rate.
By June of 1983, when Fleming completed his graduate study, OCR had concluded its investigation of his complaint and detailed a proposed resolution in a June 23, 1983 letter to the University. (Defendant's Cross-Motion for Summary Judgment Exh. G) The University would agree to lower its room charges for appellant by 25 percent for his graduate year, halve the past bills for his summer 1982 housing, and "consider" reducing his spring 1982 housing bill by 25%. The University would charge future disabled students with SOD accommodations 75% of the total that would be paid by two students occupying the same room. The University also would agree to develop and submit for OCR's review and comment "a housing policy that provides for single occupancy housing for students who require such special housing accommodations." Finally, the University "assured OCR that an adequate number of rooms [in its new graduate student housing facilities], in all classifications (e.g. singles, doubles, suites etc.) will be made available for disabled students." Fleming at first agreed to this solution but later changed his mind. This suit ensued. The University, for its part, counterclaimed for the amount due for his housing.
Subsequently, OCR, in a letter dated December 31, 1985, more than two and one-half years after administratively closing the complaint and three months after suit was filed, issued a final letter regarding appellant's administrative complaint. (Defendant's Cross-Motion for Summary Judgment, Exh. H) In an opaque opinion, OCR determined that appellant had not been discriminated against because he had requested and received SOD student housing, and thus his situation was not comparable to that of able-bodied students who, because of a low occupancy rate during the summer of 1982, had resided in double rooms without incurring extra charges. The letter found, however, that the University's policy of double billing disabled students for SOD's violated § 504. OCR concluded that the terms of the agreement first accepted and then rejected by appellant would suffice to bring the University into compliance with § 504.
Fleming moved in the district court for a preliminary injunction to force the University to issue immediately his Master of Arts diploma, which the University had withheld until he paid his housing bills. The University moved for summary judgment. The district court denied the preliminary injunction and granted summary judgment for defendant. It found Fleming's assertion that he was overcharged as an undergraduate probably stated a claim, noting that OCR, in its 1985 letter to the University, had found that the University's housing policies discriminated against handicapped students. Nevertheless, it determined that this claim was barred by a three-year statute of limitations. As to the claim relating to his graduate housing, the court found appellant had requested special treatment when he asked to reside in an undergraduate residence, unlike other graduate students. Therefore, summary judgment was granted in favor of the University.
In June 1987, appellant moved under Rule 60(b)(3) to vacate the summary judgment, alleging that the University misrepresented certain facts in its affidavits. Appellant submitted a draft OCR report which demonstrated that the University had no graduate housing suitable for disabled students. Two affidavits from disabled graduate students also claimed that the University offered no such housing. This motion was denied on October 5, 1987.
Fleming sought to appeal the entire judgment. However, because the University's counterclaims remained, no final judgment was entered on the grant of summary relief to the University. Accordingly, Fleming appealed only the denial of the preliminary ...