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IN RE STILL

May 30, 1996

In the Matter of the Application of DAN STILL, as Acting Commissioner of the New York City Department of Mental Health, Mental Retardation and Alcoholism Services, the NEW YORK CITY DEPARTMENT OF MENTAL HEALTH, MENTAL RETARDATION AND ALCOHOLISM SERVICES, and the CITY OF NEW YORK, Petitioners, -against- BARBARA A. DEBUONO, as Commissioner of the New York State Department of Health, the NEW YORK STATE DEPARTMENT OF HEALTH, and Mr. " " on behalf of "E.M.," an infant, Respondents.


The opinion of the court was delivered by: MOTLEY

 I. BACKGROUND

 Dan Still, as Acting Commissioner of the New York City Department of Mental Health, Mental Retardation and Alcoholism Services, the New York City Department of Mental Health, Mental Retardation and Alcoholism Services and New York City ("petitioners") first filed this action in New York State Supreme Court on December 14, 1995, to challenge the Determination and Order of Administrative Law Judge ("ALJ") Marc P. Zylberberg of the New York State Department of Health, dated August 15, 1995, pursuant to Article 78 of the New York Civil Practice Law and Rules.

 This Order directed petitioners to reimburse respondent Mr. " ", the parent of autistic infant E.M., $ 12,135.00 for monies spent providing E.M. with appropriate education in the form of applied behavioral analysis ("ABA") therapy, pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. Sec. 1400 et seq., and applicable state statutes. Because petitioners challenge an Order rendered by a New York State Department of Health administrative law judge, Barbara DeBuono, Commissioner of the New York State Department of Health and the New York State Department of Health are also named as respondents (the "State respondents").

 On January 11, 1996, respondent Mr. " " removed this petition to federal court. Since the facts of this case closely resemble another case pending before this court, Malkentzos v. DeBuono, 95 Civ. 5569, both actions were consolidated by court order dated January 30, 1996. The recent decision issued by this court in Malkentzos is accordingly incorporated in its entirety. See Malkentzos v. DeBuono, 923 F. Supp. 505, 1996 U.S. Dist. LEXIS 4866, 1996 WL 180055 (S.D.N.Y. 1996).

 As in Malkentzos respondent Mr. " " (1) is the father of an autistic infant; (2) charged petitioners with failing to provide his son an appropriate education pursuant to IDEA; (3) undertook to provide his son such an education on his own; (4) paid for trained teachers who were not "qualified" under state statute to give his child 20 plus hours per week of ABA therapy; and (5) sought reimbursement for his expenditures in an administrative proceeding before the New York State Department of Health.

 Unlike plaintiff in Malkentzos, however, Mr. " " prevailed on his claim for reimbursement before ALJ Zylberberg. Specifically, ALJ Zylberberg found by "substantial evidence" that the early intervention services offered by petitioners to E.M. were "not appropriate and did not meet E.M.'s developmental needs as required by the Public Health Law." See In the Matter of Mr. " " on Behalf of "E.M." Infant, Determination and Order of Administrative Law Judge Marc P. Zylberberg, Esq., p. 13, dated August 15, 1995 (the "Order"). Moreover, ALJ Zylberberg determined that respondent Mr. " " was entitled to reimbursment in spite of the fact that the personnel he used to administer the ABA therapy were not "qualified" within the meaning of N.Y. Pub. Health Law Sec. 2541(15). Id. at 16-17. Thus, although this case is nearly identical to Malkentzos, its procedural posture is reversed because it is the City who seeks to challenge ALJ Zylberberg's decision to grant reimbursement to respondent Mr. " ".

 II. REMOVAL JURISDICTION

 Petitioners first challenge this court's removal jurisdiction over the instant dispute. Specifically, they argue that their petition, as filed in state court, does not invoke federal law and therefore was improvidently removed to federal court.

 Removal to federal court of an action commenced in state court is proper when the action could have been commenced by petitioners in federal court under the court's original jurisdiction. See 28 U.S.C. Sec. 1441. According to 28 U.S.C. sec. 1331(a), the district courts have original jurisdiction of all civil actions "arising under" the Constitution, laws or treaties of the United States. To determine whether the subject matter of the removed action is within this court's original jurisdiction, the allegations of the state court complaint must be reviewed, uncolored by potential or asserted defenses or counterclaims of the defendant(s). Calhoon v. Bonnabel, 560 F. Supp. 101, 104 (S.D.N.Y. 1982); Committee of Interns v. N.Y. State Labor Relations Board, 420 F. Supp. 826, 831 (S.D.N.Y. 1976).

 As explained by the Supreme Court in Gully v. First National Bank, "to bring a case within the statute, a right or immunity created by the Constitution or the laws of the United States must be an element and an essential one of the plaintiff's cause of action .... The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction and defeated if they receive another ...." 299 U.S. 109, 112-13, 81 L. Ed. 70, 57 S. Ct. 96 (1936). See also Westmoreland Hosp. Assoc. v. Blue Cross, 605 F.2d 119, 122 (3d Cir. 1979), cert. denied, 444 U.S. 1077, 62 L. Ed. 2d 759, 100 S. Ct. 1025 (1980); Calhoon, 560 F. Supp. at 104.

 This rule, however, does not limit the court to the words on the face of the complaint or to a party's characterization of his or her claims. Gully, 299 U.S. at 113; Calhoon, 560 F. Supp. at 104-05. Rather, the court must "ascertain from the complaint whether federal law is a pivotal issue in the case, one that is basic in the determination of the conflict between the parties." Gully, 299 U.S. at 117-18; see also New York v. Local 144, 410 F. Supp. 225, 226-27 (S.D.N.Y. 1976) ("inquiry must be made as to whether, regardless of artful pleading, in fact the action is one governed by federal law."). Essentially, removal jurisdiction exists if "the action, though ostensibly grounded solely on state law, is actually grounded on a claim in which federal law is the exclusive authority." Federated Dep't Stores v. Moitie, 452 U.S. 394, 408, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981).

 For instance, in Calhoon, an action commenced under the New York State labor law was removed to federal court and respondents moved to remand the matter to state court, arguing that (1) the complaint had not referenced federal law and (2) the action was not a civil action "arising under the laws of the United States." 560 F. Supp. at 107. The court disagreed, concluding that the claims asserted under New York's labor law were wholly controlled by ERISA. Because federal ...


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