*

Honorable James H. Michael, Senior U.S. District Judge for

the Western District of Virginia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-2968, 95-3091.

Scott ZIPPERER, a minor, By and Through his mother and next

friend Elizabeth ZIPPERER; Elizabeth Zipperer, individually,

Plaintiffs-Appellants,

v.

The SCHOOL BOARD of SEMINOLE COUNTY, FLORIDA, Defendant-Appellee.

Scott ZIPPERER, a minor, By and Through his mother and next

friend Elizabeth ZIPPERER; Elizabeth Zipperer, individually,

Plaintiffs-Appellees,

v.

The SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA, DefendantAppellant.

May 6, 1997.

Appeals from the United States District Court for the Middle

District of Florida. (No. 94-842-CIV-ORL-18), G. Kendall Sharp,

Judge.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*

, Senior

District Judge.

BIRCH, Circuit Judge:

A disabled child and his mother, as prevailing parties in a

state administrative hearing, brought this action for an award of

attorneys' fees pursuant to 20 U.S.C. § 1415(e)(4)(B), a provision

of the Individuals with Disabilities Education Act ("IDEA"), 20

U.S.C. §§ 1400-85. The district court granted summary judgment in

favor of the defendant school system. The child and his mother

appeal that order, and the school system cross-appeals the district

court order granting a motion by the child and his mother for an
extension of time to file the notice of appeal. We address two

issues in these consolidated appeals: (1) whether reliance on the

normal course of the delivery of mail can establish excusable

neglect for an untimely filing of a notice of appeal and (2) what

constitutes the applicable statute of limitations in a suit filed

under section 1415(e)(4)(B). We AFFIRM in part, and VACATE and

REMAND in part.

I. BACKGROUND

Elizabeth Zipperer and her minor son Scott initiated an

administrative due process hearing under the IDEA to establish that

Scott was disabled and thus entitled to special education services.

Following the hearing, the hearing officer determined that the

School Board of Seminole County ("the school system") had failed to

provide Scott with a free, appropriate public education as required

under the IDEA. There is no dispute that the Zipperers were the

prevailing party at the administrative hearing.

The Zipperers, as the prevailing party, requested attorneys'

fees at the administrative hearing. The hearing officer, however,

concluded that he lacked jurisdiction to award attorneys' fees.

Three years and ten months later, the Zipperers filed an action in

federal district court to recover attorneys' fees pursuant to 20

U.S.C. § 1415(e)(4)(B). Because the IDEA is silent regarding the

time period for filing an action, the district court borrowed the

Florida thirty-day statute of limitations applicable to appeals of

administrative decisions, Fla. Stat. ch. 120.68(2) and Fla. R.App.

P. 9.110(b), and found the Zipperers' action to be time barred.

The district court, accordingly, granted summary judgment in favor
of the school system on June 27, 1995.

The Zipperers sought to appeal the summary judgment and mailed

a notice of appeal on July 21, 1995 from Rockledge, Florida via

first class mail to the district court in Orlando, Florida. The

notice of appeal was filed with the district court on July 28,

1995, thirty-one days after the entry of summary judgment. When

this court questioned the timeliness of the notice of appeal, the

Zipperers filed a motion with the district court for an extension

of time pursuant to Rule 4(a)(5) of the Federal Rules of Appellate

Procedure. The Zipperers alleged that the seven-day delay in the

delivery of the notice of appeal was unexpected in view of the

normal three-day course of delivery. The district court found

excusable neglect for the Zipperers' failure to file a timely

notice of appeal and granted the motion for an extension of time.

The Zipperers appeal the summary judgment, and the school system

appeals the order granting the motion for an extension of time to

file the notice of appeal.

II. DISCUSSION

We address two issues in these consolidated appeals. First,

we consider whether the district court properly granted the

Zipperers an extension of time for filing their notice of appeal.

Second, we consider whether the Zipperers' claim for attorneys'

fees was barred by a thirty-day statute of limitations.

A. Extension of Time for Filing Notice of Appeal

 As a threshold issue, we examine the jurisdictional question

raised by the school system's appeal of the order granting the

Zipperers' motion for an extension of time for filing a notice of
appeal. See Griggs v. Provident Consumer Discount Co., 459 U.S.

56, 61, 103 S.Ct. 400, 403, 74 L.Ed.2d 225 (1982) (holding that a

timely notice of appeal is "mandatory and jurisdictional"). If a

party fails to file a timely notice of appeal, the appellate court

is without jurisdiction to hear the appeal. Pinion v. Dow Chem.,

U.S.A., 928 F.2d 1522, 1525 (11th Cir.1991). Federal Rule of

Appellate Procedure 4(a)(5), however, provides that the district

court can extend the time for filing the notice upon a showing of

excusable neglect. We review a determination of excusable neglect

for abuse of discretion. See Advanced Estimating Sys., Inc. v.

Riney, 77 F.3d 1322, 1325 (11th Cir.1996).

The Supreme Court has held that "excusable neglect" as used in

Bankruptcy Rule 9006(b)(1) should be determined using a flexible

analysis. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.

Partnership, 507 U.S. 380, 388, 113 S.Ct. 1489, 1495, 123 L.Ed.2d

74 (1993). Under Pioneer, a court analyzing a claim of excusable

neglect should consider "all relevant circumstances surrounding the

party's omission .... includ[ing] ... the danger of prejudice to

the [nonmovant], the length of the delay and its potential impact

on judicial proceedings, the reason for the delay, including

whether it was within the reasonable control of the movant, and

whether the movant acted in good faith." Id. at 395, 113 S.Ct. at

1498 (footnote omitted). We have previously held that the same

flexible analysis of excusable neglect applies to a ruling under

Rule 4(a)(5). Advanced Estimating, 77 F.3d at 1324.

 In this case, the Zipperers filed the notice of appeal one

day late. They mailed the notice six days before the required date
of filing. See Fed. R.App. P. 4(a)(1) (requiring that the notice

of appeal be filed within thirty days of the date of entry of a

judgment or order). The date they mailed the notice was several

days before the three days required for normal mail delivery

between the point of mailing and the district court. The school

system argues that the district court erred in finding that the

Zipperers' reliance on the normal delivery of mail constituted

excusable neglect. We disagree and find no abuse of discretion in

the district court's determination of excusable neglect.

Therefore, we have jurisdiction to consider the Zipperers' appeal.

B. Statute of Limitations Applicable to 20 U.S.C. § 1415(e)(4)(B)

 The additional issue before this court is whether the

district court erred in applying a thirty-day statute of

limitations to bar the Zipperers' suit for attorneys' fees under 20

U.S.C. § 1415(e)(4)(B). The IDEA provides no statutes of

limitations for either substantive appeals under section 1415(e)(2)

or actions for attorneys' fees under section 1415(e)(4)(B). Powers

v. Indiana Dep't of Educ., 61 F.3d 552, 555 (7th Cir.1995); see

JSK By and Through JK v. Hendry County Sch. Bd., 941 F.2d 1563,

1570 n. 1 (11th Cir.1991) ("JSK ") (acknowledging that there is no

statute of limitations provided for civil actions under section

1415(e)(2)). "The Supreme Court has held that "when Congress has

failed to provide a statute of limitations for a federal cause of

action, a court "borrows" or "absorbs" the local time limitation

most analogous to the case at hand.' " Id. (quoting Lampf, Pleva,

Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 355, 111

S.Ct. 2773, 2778, 115 L.Ed.2d 321 (1991) (citations omitted)).
 1

In JSK, we stated in dicta that, in the context of a

substantive appeal under section 1415(e)(2), we likely would

adopt the thirty-day statute of limitations for an appeal of

administrative proceedings. 941 F.2d at 1570 n. 1. Because this

court has not ruled on the applicable statute of limitations for

a suit brought under section 1415(e)(2), we need not address

whether the limitations period should be the same for suits

brought under section 1415(e)(2) and section 1415(e)(4)(B). 

Accordingly, nothing in this case should be viewed as a ruling on

the applicable statute of limitations for a substantive appeal of

an administrative hearing under 1415(e)(2). 

When the state limitations period applicable to the most analogous

state law is inconsistent with the policies of the federal statute,

however, the state limitations period is rejected. Friedlander v.

Troutman, Sanders, Lockerman & Ashmore, 788 F.2d 1500, 1502 (11th

Cir.1986). Applying these "borrowing" rules, the district court in

this case applied Florida's thirty-day limitations period for

appeals from administrative hearings, see Fla. Stat. ch. 120.68(2);

Fla. R.App. P. 9.110(b), and rejected the four-year period provided

for "actions founded on statutory liability," Fla. Stat. ch.

95.11(3)(f).

 The issue of which statute of limitations is most analogous

and should be applied to an action for attorneys' fees under the

IDEA is one of first impression for this court.1

 Several other

circuits have reached the issue of the applicable statute of

limitations for substantive appeals under the IDEA. See, e.g.,

Amann v. Town of Stow, 991 F.2d 929 (1st Cir.1993) (applying a

thirty-day period for appeals of administrative decisions);

Spiegler v. District of Columbia, 866 F.2d 461 (D.C.Cir.1989)

(same); Adler v. Education Dept., 760 F.2d 454 (2d Cir.1985)

(applying a 120-day statutory limitations period for review of

administrative decisions regarding children with disabilities);
Department of Educ. v. Carl D., 695 F.2d 1154 (9th Cir.1983)

(applying a thirty-day period for appeals of administrative

decisions). Only the Seventh Circuit, however, has ruled on the

applicable statute of limitations for suits brought for attorneys'

fees under the IDEA. See Powers, 61 F.3d 552 (applying Indiana's

thirty-day period of limitations for review of an administrative

decision to a claim for attorneys' fees); Reed v. Mokena Sch.

Dist. No. 159, 41 F.3d 1153 (7th Cir.1994) (applying a 120-day

limitations period for review of an administrative decision under

the Illinois School Code in a case solely for attorneys' fees);

Dell v. Board of Educ., 32 F.3d 1053 (7th Cir.1994) (applying the

same Illinois statute in a case involving both educational expenses

and attorneys' fees).

The Seventh Circuit has reasoned that a claim for attorneys'

fees under the IDEA should be viewed as ancillary to an

administrative proceeding rather than an independent cause of

action. See Powers, 61 F.3d at 556. Accordingly, the Seventh

Circuit held in Dell that the most analogous state statute for both

substantive appeals and actions for attorneys' fees was the

relatively short limitations period for review of an administrative

appeal. Dell, 32 F.3d at 1064. In Powers and Reed, the court

similarly applied a short limitations period in suits brought

solely for attorneys' fees after the request for an administrative

hearing was withdrawn. Powers, 61 F.3d at 557; Reed, 41 F.3d at

1154. Although the Seventh Circuit has held that claims brought

under section 1415(e)(2) and 1415(e)(4)(B) are sufficiently similar

to justify borrowing the same state statute of limitations for
either claim, the court has acknowledged concerns for the brevity

of a thirty-day statute of limitations in IDEA cases. See Powers,

61 F.3d at 559.

Although the district court in this case followed the

reasoning of the Seventh Circuit, a number of district courts have

rejected that reasoning and borrowed longer state statutes of

limitations. See J.B. By and Through C.B. v. Essex-Caledonia

Supervisory Union, 943 F.Supp. 387, 391-92 (D.Vt.1996) ("J.B.")

(applying the six-year catchall statute of limitations); Curtis K.

v. Sioux City Community Sch. Dist., 895 F.Supp. 1197, 1220

(N.D.Iowa 1995) (borrowing the five-year limitations period for

"actions for which no other statute of limitations is specified");

James v. Nashua Sch. Dist., 720 F.Supp. 1053, 1058 (D.N.H.1989)

(applying the three-year catchall statute of limitations for

"personal actions"); Robert D. v. Sobel, 688 F.Supp. 861, 864

(S.D.N.Y.1988) (borrowing the three-year statute of limitations for

actions to recover upon a liability imposed by statute). These

courts generally have distinguished claims under section 1415(e)(2)

and section 1415(e)(4)(B) and reasoned that the short statutes of

limitations associated with appeals of administrative procedures,

while appropriate when a child's Individualized Education Plan is

at issue in a substantive appeal of an administrative

determination, are too short to vindicate the underlying federal

policies associated with the fee-claims provisions of the IDEA.

See, e.g., J.B. at 391 ("Congressional policy favors the protection

of the educational rights of the [disabled]. A short statute of

limitations in attorneys' fee claims would frustrate that
 2

Section 1415(e)(4) provides that a federal district court

can award attorneys' fees to the "parents or guardian of a child

with a disability who is a prevailing party." Section 1415(e)(2)

provides that "any party aggrieved" by a decision of an

administrative hearing can bring an action in either a state

court or federal district court. Both the party who can appeal

and the available forums are different under the two actions. 

policy.").

We agree that the IDEA provides two distinguishable causes of

action under sections 1415(e)(2) and 1415(e)(4)(B).2

 Most

significantly, section 1415(e)(2) provides for the appeal of a

substantive administrative decision, whereas section 1415(e)(4)

provides for an independent claim for attorneys' fees. Because the

district court, rather than the administrative agency, has

jurisdiction to award fees, the prevailing party cannot appeal an

administrative decision under section 1415(e)(4). Accordingly, we

reject the school systems' argument that a claim under section

1415(e)(4)(B) is analogous to the appeal of an administrative

hearing. Instead, we find that section 1415(e)(4) provides a claim

based on a statutory liability and is, thus, more analogous to Fla.

Stat. ch. 95.11(3)(f).

We next address whether adoption of a four-year statute of

limitations is inconsistent with the policies of the IDEA. We

acknowledge that a short period of limitations for claims brought

pursuant to section 1415(e)(2) "assure[s] prompt resolution of

disputes over education plans for [disabled] children." Carl D.,

695 F.2d at 1157, quoted in JSK, 941 F.2d at 1570 n. 1.

Nonetheless, the resolution of claims for attorneys' fees is less

urgent and, in reality, is more likely to be resolved by the

attorneys' interest in prompt payment than by a short period of
limitations. A four-year period of limitations, like the award of

attorneys' fees to parents who are prevailing parties, is likely to

encourage the involvement of parents, as represented by attorneys,

in securing an appropriate public education. We conclude that the

application of a four-year statute of limitations to claims for

attorneys' fees under the IDEA is consistent with the policies of

the federal statute. Thus, we determine that Fla. Stat. ch.

95.11(3)(f) is the most analogous Florida law in a case brought

under section 1415(e)(4)(B) of the IDEA. The district court in this

case erred in failing to apply the most analogous state statute.

III. CONCLUSION

In this consolidated appeal involving the award of attorneys'

fees under the Individuals with Disabilities Education Act, Scott

Zipperer and his mother appeal the summary judgment entered in

favor of the School Board of Seminole County; the School Board

appeals the district court's order granting the Zipperers' motion

for an extension of time to file a notice of appeal. We determine

that the district court was within its discretion in finding

excusable neglect in the Zipperers' untimely notice of appeal

because the Zipperers' mailed the notice in cautious reliance on

the normal delivery of mail and filed the notice only one day late.

We therefore have jurisdiction over this appeal. The district

court, however, failed to borrow the limitations period from the

most analogous state statute and erred in finding the Zipperers'

claim to be time barred. We determine that claims for attorneys'

fees under the IDEA are distinguishable from appeals of substantive

administrative decisions and that the most analogous Florida
statute for a claim for attorneys' fees under the IDEA is a

four-year statute of limitations for claims based on statutory

liability. Accordingly, we AFFIRM the district court's order

granting an extension of time for filing the notice of appeal,

VACATE the court's summary judgment order, and REMAND for

proceedings consistent with this opinion.