*1
149
appeal
satisfy
state
cannot
the federal
fault,
habeas were not his
but were the fault of the
requirement.
exhaustion
state courts or the
Attorney
state
General.
A careful
record,
review of
however,
dis-
found,
The district court also
in the alter-
closes that
“procedural
these
obstacles” were
native, that even if Ellman had not exhausted
not obstacles but were
procedural
reasonable
remedies,
his state
he was excused from the
requirements. Nothing in the
sug-
record
requirement.
exhaustion
The court found
gests that
precluded
Ellman was
from sub-
that in this
remedy
case the
available in the
mitting an order either for the dismissal of
state court
protect
was ineffective to
Ell-
his state
claim
habeas
or for the October
rights.
man’s
disagree.
recommitment
order.
Ellman’s
counsel
An exception to
require-
the exhaustion
knew that an order
required
pursue
may
ment
“only
made
there is no
if
Yet,
appeal.
Ellman and his counsel
opportunity to obtain redress in state court
failed to
advantage
take
pro-
the available
or if the
process
[state] corrective
is so clear-
cedures. Ellman’s own failure to utilize the
ly
any
as to render
effort to
deficient
futile
process
state
cannot render that
“so
Serrano,
obtain relief.” Duckworth v.
454
clearly deficient as to
any
render futile
effort
1, 3,
U.S.
102 S.Ct.
1
70 L.Ed.2d
relief,” Duckworth,
to obtain
3,
454 U.S. at
(1981)
added).
(emphasis
The district court
ment orders. properly Of if Ellman presented had his constitutional issues to the reasons, For foregoing judgment Appellate state original Division on either his reversed, the district court is and this case is commitment order or one of the subse- remanded to the district court with instruc- quent orders, recommitment and the state tions to petition dismiss the for writ of claims, court refused to hear his the district corpus habeas for failure to exhaust state court’s view have been correct. See remedies, pursuant court to 28 U.S.C. United States rel. Stevens McCloskey, ex v. § 2254. (2d Cir.1965) (ruling 308 petitioner, by appealing contempt his first
conviction, had satisfied the exhaustion re-
quirement for his third concerning conviction presented
the same court), issues state rev’d on other grounds sub nom. Stevens v. BERNARDSVILLE BOARD OF Marks, U.S. EDUCATION, Appellant, (1966). However, L.Ed.2d 724 case, in this Ellman never properly presented his consti- tutional claims to the state appellate court. J.H., Individually and on behalf directly He never appealed July, son, J.H.; E.H., minor Individually and contempt adjudication, civil opting instead to son, J.H.; on behalf of J.H., their minor pursue a petition. state habeas This state Individually. petition was September, dismissed but the No. 93-5767. appeal could not be January. taken until delays appeals Ellman’s were not the United States Appeals, Court of repetitive result of orders, recommitment but Third Circuit. caused, part, least in Ellman’s Argued Aug. 1994. attorneys’ failure submit orders to the court. The state remedies available were not Nov. Decided 1994. simple ineffective and compliance with state Sur Rehearing Petition for Dec. procedure would have avoided much of the delay.
The “pro- court also found that the
cedural obstacles” thrown in way Ellman’s *2 Simon, (argued), David L.
Nathanya G. Edelstein, Schwartz, Simon, Cel- Rosenberg, NJ, Kessler, appellant. Livingston, so & Sussan, (argued), Staci J. A. Theodore Greenwald, Spotswood, Greenwald, & Sussan NJ, appellees. - MANSMANN, Before: COWEN priate education, that it failed utterly
McKEE, Judges. Circuit regard, this they and that virtually forced to enroll J.H. in an out of district OPINION OF COURT THE. school in order to ensure him an appropriate *3 MANSMANN, educational benefit. The Act Judge. Circuit imple- menting regulations guideline offer no Through the “cooperative exercise in fed- regard to the timeliness of this claim for eralism” which is the imple- hallmark of the retroactive reimbursement. mentation of the Education of the Handi- Act, capped seq., 1400 et §§ Ü.S.C. now We- must decide whether J.H.’s known as the Individuals with Disabilities requested for their son within an Act, Education local school boards are man- appropriate time limitation. Notwithstand- free, provide dated to a public ing an acknowledgement good of cause for education alongside for children frustration J.H.’s and the rea- peers their who are not impaired. so The sonableness of decision, their educational we Act authorizes federal assistance to states conclude that for reimbursement programs localities for educational which for years the first two after J.H. was re- confer an educational benefit disabled stu- moved from Bernardsville and enrolled in a dents. The Bernardsville School re- District private institution untimely. was We will ceives an allocation of funds under this Act award only reimbursement for J.H.’s third and thus responsibility incurs the to confer year private education and partial for at- learning educational benefit on disabled torney’s fees. students enrolled in a school within its jurisdiction. I. J.H., subject the child who is the at the case, heart of this was denied the benefit of a J.H. entered the Bernardsville School Dis- appropriate public free throughout trict in September, after he had com- his several years as an elementary pleted school kindergarten parochial at a school and student within the Bernardsville School Dis- it had become apparent that his academic trict. Year after the School progress District was not commensurate with the failed design an Individualized Educational other children in his class. In the Bernards- Program needs, special suitable to J.H.’s District, and ville School repeated J.H. kinder- failed to responsibly intervene quite garten, his at the end of which it again was apparent trend of apparent academic social deteri- that J.H.’s academic skills were Observing oration. their son’s significantly educational deficient and that- he had not predicament and dissatisfied with the progressed school during much year. the academic program Bernardsville, By J.H.’s uni- year 1981-82,- November of academic laterally removed J.H. from the School Dis- while was in grade, J.H. first J.H.’s trict and private enrolled him in a out-of- ents still -progress observed a lack in their school, state residential improved where J.H. son, private and hired a tutor reading for significantly under a responsive to math a January, 1982, once week. In his later, needs. More than two private learning consultant advised Mr. and parents sought reimbursement from the Ber- required Mrs. H. that J.H. one-on-one aca- nardsville School District for tuition and ex- demic January, assistance. the Ber- penses for private education. District, nardsville School also well aware parents argued that Bernardsville difficulties, was J.H.’s academic referred J.H. to obliged provide law J.H. with a Team,1 free appro- Study Child April and on 1.The Bernardsville school's referral 3. We are elementary concerned there be an following evaluation J.H.'s case listed the articulation There are words problem. many reasons specific referral: he cannot pronounce. [J.H.] 1. is inattentive unless its a very one to His answers are questions often inap- one- situation. propriate. 2. He fails to often when his respond name 5. He cannot work independently. called. A. 2095-96. report recom- development. academic impaired. perceptually as classified J.H. learning room quiet specifically resource mended in a small placed J.H. District distractions, seating in preferential few and main- with group, reading and math room from classroom, eliciting frequent feedback also subjects. J.H. for other streamed memory J.H., speech common certain in the Bernardsville school summer attended against a techniques, and counseled training the first completing after reading. Phonetics approach phonetics grade. IEPs emphasized nevertheless room instruction in resource remained Moreover, H. testified reading.5 Mrs. the end Bernardsville school in the judge law the administrative before very showing limited grade, the third *4 reasonably free room was resource J.H.’s keeping aca- difficulty great progress and sabotage which could background noise from Individual- peers. The pace his with demic deficit child. this attention to educate efforts (IEP) reports cre- Program ized Educational for the district by the Bernardsville ated 1986-87, at the end of year In academic 1984-85, 1982-83, as well and level, reading as mea- his grade, sixth J.H.’s evaluations psychological Bernardsville’s as Psychoedu- Johnson by Woodcock sured academic J.H., of to J.H.’s lack attest of only progressed from Battery, had cational in his disturbing and deterioration progress a grade to 2.9. Notwithstand- I.0 in the first confidence, interaction and self-esteem social prior years, the in of success ing J.H.’s lack court found district peers. The
with for the 1987-88 by the district provided IEP isolation and social frustration academic virtually grade was year, J.H.’s school in Ber- experience marked J.H.’s Dr. IEPs. unsuccessful prior to the identical nardsville. expert testifying as an on Margolis, Howard re- J.H.’s early of As October as trial, J.H.’s at characterized of J.H. behalf Garland, teacher, recorded Mrs. source room reason- inappropriate and not placement as anxiety” regarding the “persistent H.’s Mrs. benefit to confer educational ably calculated of Mahler efficacy IEP. Mr. Walter on J.H. Study also Team was Child the Bernardsville parents uni- of J.H.’s September In audiologieal evaluation in of an apprised the Bernards- J.H. from laterally removed auditory function- central assessment of and placed him at the system and ville school neurologist, private a ing performed Massachusetts, a resi- Landmark School experiencing that J.H. was which revealed children. dential school auditory figure- difficulty with significant for aca- at Landmark J.H. attended ability,2 auditory clo- ground discrimination 1989-90, through J.H.’s years demic to suffer with ability3 appeared also and sure 1987 and In December of 9. grades and A. 2126-2128. auditory memory deficits.4 request of at the J.H.’s listening November optimal report That recommended District conducted parents, the Bernardsville his to enhance for J.H. order conditions Ed.D., Reading Special and Edu- Margolis, Clare’s 5.Dr. report, St. was done 2. The Consultant, testimony auditory figure ground before ad- Hospital, cation indicates inability may judge as a written evalua- and deficits manifest law discrimination ministrative prior of back- program environment report to communicate J.H.’s educational tion on may Landmark, difficulties ground Communication seg., noise. A. 2561 et. to his enrollment conditions, listening optimal if be circumvented pho- a maintained Bernardsville concluded that distractions, are including quiet with few room year reading approach year after de- netics learning. A. provided for 2127. given handicap- J.H.'s spite inappropriateness its administrative ping A. 2572. The condition. difficulty Auditory deficits cause 3. closure Margolis' persuaded by find- judge Dr. law reading, spell- blending as and manifest sounds conclusions, specifically found that ings problems. A. 2128. ing and articulation oppor- deprived reading program J.H. an J.H.'s reading tunity acquire skills. memory manifest as instructions, Auditory deficits the adminis- the determination court endorsed following problems verbal noting inappro- judge, specifically trative law verbal abili- reading comprehension and other reading program. priateness of ties. A. 2128. J.H., September but never On Mr. H. educational assessments authorized placement placement High at Landmark. approved J.H.’s Bernards School upon pending agreement conditioned on the September after J.H. had been IEP, “upon agreement by the Bernards- at Landmark for more than in attendance ville placement Board Education that such years, petitioned for two of J.H. thereby [would] not become the edu- current concerning hearing an administrative placement cational of [J.H.] within the mean- September from ing of federal regula- or state statutes and situation, sought current 1987 to his pertaining special tions education.” J.H. out-of- retroactive reimbursement completed in fact the 1990-91 academic schooling at district residential Landmark. grader High as a tenth at Bernards School. The Board of Education denied J.H.’s 4,1991, January parents through On request ents’ for reimbursement and defend- attorney request filed for due IEP for academic proposed ed their and for the matter to be transmitted to the 1987-88. J.H.’s filed new office of administrative law for trial. The administrative November petition contended that the Bemardsville 17, 1989. Board of inappro- Education had offered an *5 1989, and Between November December of priate program for through June of parties negotiated and reached various 1987, forcing parents place J.H. at agreements, proceed and the matter did not deprive Landmark School so as not to parties at that time. The statutory right him of his appropri- a free agreed Deputy for the Public Advocate petition ate education. alleged The Harris, Jersey, David would State of New among things prepared other that the IEPs provide a for release Bemardsville obtain by prior the Board of Education to J.H.’s J.H., that the current records of J.H. would comply enrollment Landmark did not be evaluated the Bemardsville Child requirements Jersey of New Administra- 22, 1989, Study in Team on December they tive Code 6:28-3.6 in that not were early January, the Bemardsville school reasonably calculated to confer edu- psychologist Landmark would visit to ob- J.H., upon cational benefit and did not con- J.H., meeting serve and evaluate that a specific goals tain or measurable or instruc- would held to discuss the recommenda- objectives. petition requested tional The re- that, Study tions of the Team and if Child expended imbursement for all monies on be- necessary, process procedures could be half of J.H. relative to his at the activated. commencing in Landmark school the summer agreement, to the through May Pursuant the Child of 1987 of 1990. The matter Study Team did conduct a reevaluation of was forwarded to the Office of Administra- 16, 1991, develop January IEP. hearings order tive Law on and 11, 1990, Caravello, Ed.D., Lynn April began February On on Services, Special Director of advised J.H.’s On June the administrative law developed that a new IEP had been judge against decided the case the Bernards- J.H. and recommended J.H. be Education, ordering ville Board of reim- placed High the Bernards School as bursement to the of J.H. for Land- grader eligible part-time special ninth expenses mark tuition for the academic education. 1989-90, excluding the cost 1987-88 room of J.H.’s and board. Decision Ad- May In removed Judge, Dkt. ministrative Law OAL No. EDS eighth grade J.H. from the at Landmark and (June 24, 1992), perti- A. 576-91 24r-50. reenrolled him the Bemardsville School. part, judge nent law administrative High implemented Bernards School the new- found: ly developed IEP for the balance year, appeared compliant to be not with the [IEPs] The were
responsive
Margolis’
Jersey
Dr.
it
revisional recom-
New
Administrative Code as
then
and,
year.
for the 1990-91 academic
existed
did not enable J.H. to receive
mendations
education,
ap-
at Landmark
or to best
School
either
needs,
propriate for J.H. to meet his
Specifically,
success6
achieve educational
opportunity
the best
to enable J.H.
severely lacking in ade
offered
were
J.H.’s IEP’s
success and benefit
to achieve educational
of current educational
quate statements
from his education.
status,
vague,
goals
annual
non
measured,
being
specific
incapable
576-91,
19-20;
pp.
A.
Dkt. No.
OAL
EDS
themselves,
for the most
repeated
42-43.
succeeding year.
part,
each
ap
The Bernardsville Board of Education
im-
...
J.H. to
The IEP’s
did
enable
pealed the matter to the United States Dis
any meaningful way in his read-
prove in
Jersey
for the District of New
trict Court
ing. ...
pursuant
September
to 20 U.S.C.
1415(e)(2).7
Board
Edu
Bernardsville
and intervention
Despite parental concern
(D.N.J.
J.H.,
No. 92-3694
cation v.
Civil
through regular
and communica-
contact
1993).
of J.H. moved
March
hiring
and the
tion with the District
ground
summary judgment on the
tutors,
reading
progress
lack of
appeal
the Board of Education’s
was untime
emotionally,
sig-
him to suffer
caused
1415(e)(2).
ly
Following
under 20 U.S.C.
nificantly affected his self-esteem.
opinion
of this circuit
Tokarcik v.
result,
significant problems
J.H. had
As
District,
F.2d
Forest Hills School
peers
with his
and socialization....
(3d Cir.1981) (30-day
limitation
state
reading
Although one-to-one instruction
appeals to
statute for state administrative
by independent
was recommended
evalua-
apply
claim
state courts does not
to federal
exception,
...
the same
tions
with little
brought in federal court under Education of
*6
to
was not offered
J.H.
denied,
Act),
Handicapped
cert.
458 U.S.
The
offered to J.H for seventh
3508,
(1982),
102 S.Ct.
the district court
A.
appealed the
of Education also
The Board
Education con-
The Bernardsville Board of
interlocutory opinions denying its motion
two
more than two
excluding the
tends
summary judgment
for
commencing
process ren-
delay in
the review
witnesses.
testimonies of two
ineligible
ders their claim
for reimbursement
II.
ques-
any portion
private
tuition
Board cites a number of cases
tion. The
of the record on
Upon an examination
prospec-
parents have been awarded
the district
appeal, we are confident
expenses
private
tive
school tuition
that,
any argu
and/or
properly
court
ruled
under
challenge
standard,
incurred while a
to the student’s
ably appropriate
legal
the Ber
pending through administrative re-
IEP was
failed to estab
nardsville Board of Education
support
position
its
must
program
view
by preponderance
that its
lish
free,
process in
to be
ap
commence the review
order
assured him a
for J.H.
See,
required
e.g., School Commit-
as
under
entitled to relief.12
propriate,
Jersey implements
appeal
the Feder-
Although
notice of
ex-
The state of New
Bernardsville's
10.
pro-
plicitly specifies only
through
regulations
the district court’s Novem-
al Act
state statute and
opinion,
mulgated by
Jersey
we construe the
ber
1993 order
the New
State Board of Edu-
unspecified February
incorporating
§§
notice as
18A:46-
cation. N.J.S.A.
18A:46-1
attorneys'
quantifying
fees
1994 order
May
Jersey
Until
New
law estab-
designates
award. Because the November order
higher
lished a
for local school boards
standard
attorneys'
prevailing party
purposes
mandates,
requiring
only
than the Act
fees,
recognize
adequate connection be-
we
designed
program
be
to confer
education-
February
purposes
benefit,
tween it and the
order
designed
al
but that the
latter,
jurisdiction
giv-
extending
our
over
permit
success in edu-
the child to best achieve
proceedings
subsequent appellate
en that
(1978).
cation.
6:28-2.1
See Geis v.
N.J.A.C.
appellant's
appeal
intent to
the at-
manifest the
Education,
(3d
Board
oppos-
torneys'
Importantly,
fees issue.
here the
Cir.1985). Furthermore,
Jersey
New
statutes set
ing party
opportunity
and exercised a full
had
specific requirements
forth in detail the
for each
any claim of
brief the issue and did not raise
Program.
Individualized Education
N.J.A.C.
*8
prejudice.
copyA
the district court's Febru-
of
6:28-3.6;
seq.
§§
6:28-1.1 et
ary
opinion setting
attorneys'
2
order
agree
Because we
with the district court that
appellant's brief.
fees was also attached to the
the Board of Education failed under either stan-
Guzzardi,
46,
(3d
See Williams v.
49
dard,
parties'
we need
conten-
not address
Cir.1989) (and
therein).
cited
cases
applies.
tions as to which standard
Act,
Handicapped
20
11. The Education
1415(e)(3),
qualifies
§
12.Caselaw
20 U.S.C.
seq.,
§
U.S.C. 1400 et
now known as
Individ-
provides:
("IDEA”),
uals With Disabilities Education Act
...,
pendency
proceedings
provides
During
any
assistance to states and
of
federal financial
agency
agencies
unless the State or local educational
local
for the education of
children,
guardian
agree,
provided that the state can demonstrate
and the
or
otherwise
policy
all
the child shall remain in the then current edu-
that it “has in effect
assures
ap-
placement
right
child....
to a free
cational
of such
children
disabilities
public
judicial grant
propriate
Authorization for a
of retroactive
education.”
1412(1).
Rowley,
placements
unilateral
In Board Education v.
458
reimbursement for interim
of
176, 200-04,
3034, 3047-49,
appropri-
ultimately proven to be reasonable and
U.S.
102 S.Ct.
73
ate,
(1982),
adjudged inappropriate,
Supreme
is
Court held that
where the IEP is
L.Ed.2d 690
powers
requires
justified
equitable
school
under the court's
the Federal Act
state or local
designed
grant
appropriate
provide program
relief under 20 U.S.C.
districts to
to confer
1415(e)(2).
an educational benefit on the child.
Furthermore,
Burlington
Department
Edu
tee
the Board’s annual monitoring
cation,
1996,
U.S.
105 S.Ct.
progress
of J.H.’s
while
(1985) (Act
L.Ed.2d 385
authorizes
Landmark
to keep
served
the Board on no-
injunction
prospective
and reimbursement
tice for the duration of J.H.’s out-of-district
private placement
for
unilateral
enrollment.
during
pending
review of
interim
parents’ argument
is not without
placement
adjudged inappropriate);
later
merit. The fact that
regulations
here the
do
Education,
Lascari v. Board
116 N.J.
specify
not
a time limitation within which to
(1989)
(parents may
judgment.
private
reimbursement
tuition incurred
assert
the easelaw
during
pen-
from a unilateral enrollment
explicitly,
necessarily by
this area
does
dency
any proceeding
ultimately
if it is
inference, preclude pre-proceedings
reim-
question
determined that
the IEP in
bursement;
they argue that costs incurred
inappropriate.
Burlington,
See
471 U.S. at
subsequent
expressions
to their
of dissatis-
370,105
S.Ct. at
and related cases cited
IEP,
faction
they officially
with J.H.’s
before
*9
above.
review,
a
commenced
should be reimbursed.
Nevertheless, here,
proceed
where
parents
J.H.’s
informed the Board of Edu-
ings
years
initiated
were
more than two
after
regarding
pro-
cation of their concerns
transfer,
place
equa
into
gram
placement
we must
our
August
and
of 1987 and
practical opportunity
tion the
requested placement
afforded the
at Landmark. The
modify
school district to
IEP or
request,
Board denied that
but
its
to deter
since
least
definitively
expenditures
arguably
that time the Board
mine
whether
oc
on effec-
inadequacy
tive notice of the
curred
the district could
IEP’s
and the
outside
have been
potential liability
parents.
by
filing
complaint.
Board’s
to
prompt
obviated
the
of a
duty
provide
first
instance to
an
the
the
fact that the school
cognizant of the
We are
moreover,
very large
popula-
IEP,
student
to demon-
appropriate
district serves a
and
tion,
contacts it
light
of the numerous
and
process
by
preponderance
a
at a due
strate
wel-
parents seeking the individual
has with
hearing that
the IEP it offered was indeed
children, mere notice
respective
of their
fare
mind,
we
that foremost
appropriate. With
not alone
parental “dissatisfaction” does
recognize
also
that as a
must nevertheless
the
put
Board on reasonable notice
the
reality,
procedur-
and as a matter of
practical
IEP in
challenge
particular
a
the
parents will
fully
parents
al law13 of which
for an inter-
future and seek reimbursement
right
a cor-
apprised,
the
of review contains
placement
private
in a
institu-
im unilateral
duty
responding parental
unequivocally
to
proceedings
review
tion. Absent initiation of
appropriateness
of an IEP.
place
issue the
time of a unilateral deci-
within a reasonable
initiation of
accomplished
This is
the
private
a child to a
institu-
sion to transfer
time
proceedings within a reasonable
review
tion,
not know to
a school district would
placement
for
reim-
of the unilateral
which
IEP,
and
continue to review and revise
sought.
think more than
bursement
We
conjecture
left to hazard
the court would be
indeed,
year,
years,
more than one
with-
two
of Edu-
hypothesis as to what the Board
or
excuse,
mitigating
is an unreasonable
out
if it had been
might
proposed
cation
have
delay.14
will vacate the district court’s
We
parents’ continued intent
to
informed of the
directing
1993 order
Ber-
November
for their
pursue
Mr.
H.
nardsville to reimburse
& Mrs.
We, of
within the school district.
child
course,
extent
it covers
recognize
district has
tuition at Landmark
the
that the school
district,
IDEA,
1415(b)(1)(E),requires
parents'
and that here the
decision to
Nevertheless,
receiving
agency
reasonable.
we
or local
federal
withdraw J.H. was
that the state
provide
grievance process
provisions
only
a
of the Act can
be
funds under the Act
believe that the
programs
regard
fairly implemented
recog-
of-
effectively
with
to the
and
if we
1415(b)(2) requires
any
parents
Section
fered
child.
the
and the
nize that the interest of both
agency provide
state
correspond-
state
behalf of the child bear a
district on
complaint
opportu-
parents
a
who have filed
ing respective duty
develop
the district to
—on
impartial
process
nity
due
administrative
IEP,
for an
justify
to unam-
its
on
1415(e)(2)
appeal
hearing.
provides
Section
challenge
they
biguously
the IEP. when
think it
of such a
state
from
decision
inappropriate. We think this allocation of bur-
competent jurisdiction, or to a United
court of
comports fully with the Act and the relevant
dens
regard to
States district court without
amount
implementing regulations.
controversy.
note,
dissent,
given
as does the
implements
Jersey
exten-
New
IDEA with
specificity
question
Act's lack of
on the
of timeli-
provisions designed
statutory
regulatory
sive
here, balancing
ness and the nature of the issue
provide any parent who believes that his or
equities
is unavoidable. We resort to the
being
rights
denied the
her child is
or has been
under the circum-
standard of reasonableness
stances,
by
opportunity
IDEA an
for mediation
secured
mitigating cir-
and a consideration of
impartial
administrative
and an
any delay
in the initiation of
cumstances
hearing. N.J.S.A. 18A:46-l-46 and N.J.A.C.
might
proceedings
review
otherwise
Jersey Administrative Code
6:28-1-11. The New
disagreement
Our
deemed unreasonable.
copy
explana-
requires
be sent
questions
is over the
of whether the
the dissent
unmitigated delay
procedures pertaining
tion of all
to the IDEA and
reasonable, and,
per-
here was
Jersey
seq.
New
Code. N.J.A.C. 1:6A-2.1 et
dispositive,
haps
whether the district was
more
undisputed
that in 1987
It is
J.H.'s
placed
reasonably adequate notice of the
regarding
proper
received this information
ents' intention to seek reimbursement.
pro-
steps to invoke the administrative review
clarify
weighing
that our
We wish to
cess,
any part
delayed invoking
rights
but
equities
unduly
was not
influenced
the isolat-
process until more than two
of the administrative
large
cope
ed fact that the district must
with a
placing
unilaterally
at Landmark.
after
perhaps
population,
im-
student
as the dissent
although
dissent,
plies,
rele-
we believe that this fact has
largely
except,
14. We concur
with the
course,
question
reason-
to the
of what constitutes
vance
the Act
on the critical issue of whether
adequate
particular
ably
in these
circum-
notice
implicitly
recognize duty
part
on the
can
however,
dissent,
agree
appropriateness
stances. We
with the
place
question
*10
imposes
duty
provide
Act
the same
a
year
that the
free,
a
time of the
of the IEP within
reasonable
large
appropriate education to a child in a
they
seek reimbursement.
certain-
which
ly agree
as it does to a child in a small
the
urban district
child's
community.
parents and of the
urban
is an interest both of the
bar);
90-day
Riely
and 1988-89.15
time
v. Board
Edu-
years 1987-88
of
cation,
109, 113-14,
N.J.Super.
413 A.2d
(teacher’s
(App.Div.1980)
petition
ap-
of
B.
peal with
of
Commissioner
Education con-
reimbursement for
The issue of retroactive
cerning
by 90-day
reinstatement
time-barred
year
requires closer scru-
the school
rule,
pendency
of arbitration
does
equities.
beginning
At the
tiny of the
rule);
compliance
90-day
relieve
with
Lom-
year,
parents sought
academic
Education,
v.
bardi Board
OAL Dkt. No.
of
hearing regarding J.H.’s
an administrative
1987) (Commis-
(January
EDU 6808-86
negotiations
began
intensive
Education);
sioner of
Markman v. Board of
resulting
reentry
in a
of
with Bernardsville
(Au-
Education, OAL Dkt. No. EDU 0317-86
newly developed
IEP within the
a
1986) (Commissioner
Education).
gust
of
shortly
that academic
district
before
citing arguably
supporting
addition to
expired.
parents subsequently contin-
caselaw, the Board of Education contends
actively
pursue
process,
ued
review
Jersey
that the scheme of the New
Code also
ultimately requested
a due
hear-
compels application
90-day
rule. The
ing
reimbursement
for retroactive
A-l.l,
Board
pro-
cites N.J.A.C. 1:6
which
academic
1990-91. Thus from
middle of
vides:
1989-90,
beginning
of
set
fairly
steps
firm
which
notified
in motion the
chapter
apply
The rules
this
shall
liability
that retroactive
the school board
hearing
arising
the notice and
of matters
afforded the board a fair
possibility
a
Special
Program
out of the
Education
opportunity to revise its IEP
Education,
Department
pursuant
Any aspect
N.J.A.C. 6:28.
of notice and
The Board of Education asserts
hearing
by
special
not covered
these
rules
court was constrained to dismiss even
governed by
shall be
the Uniform Adminis-
the reimbursement
for 1989-90 as
(U.A.P.R.)
trative Procedure Rules
con-
90-day
pursuant to the
rule set
time-barred
1:1_
tained in N.J.A.C.
provision
6:24-1.2. That
forth
N.J.A.C.
provides:
N.J.A.C. 1:1-31
provides
part:
in relevant
(a)
A
shall
initiate a contested case for the
contested case
be commenced
To
subject
agency
determination of a contro-
State
Commissioner’s
jurisdiction.
may
A
arising
matter
contested case
versy
dispute
or
under the school
laws,
by
agency
by
petitioner
copy
of a
be commenced
itself or
shall serve
entity
upon
respondent....
provided
an individual or
as
in the
petition
each
regulations
agency.
rules and
‡
‡
‡
agency
state
here is the
(c)
petitioner
no
petition
shall file a
of Education. N.J.A.C. 6:24-
Commissioner
day
later than the 90th
from the date
provision
I.2 is the code
which limits the time
order, ruling
a final
receipt of the notice of
parent
within which a
seek a
or
action
the district board of
other
judge for the
before an administrative law
education,
party,
agency,
individual
of Education.
Thus
Commissioner
subject
requested con-
which is the
6:24-1.2(c),
argues
Board
that N.J.A.C.
hearing.
case
tested
rule,
90-day
sets forth the
mandated
The Board of Education cites a number of
petition with the
file a
Com-
90-day
cases in which the
rule has been
days
receipt of the
missioner within 90
from
applied in the education context. See North
IEP,
delay
disputed
and that their
results
Ed
Education Assoc. Board
Plainfield
ucation,
from all relief.
a time-bar
96 N.J.
IEP and is not cost reimbursement for the antee retroactive IDEA, light 20 of the U.S.C. placement, even unilateral of a reasonable 1415(e)(4)(B), provides which “the ultimately to have the IEP is found where court, discretion, may in its award reasonable under- inappropriate. Even a liberal been attorneys’ part fees as of the costs to the standing operative policies guardian of a child or necessity practical IDEA cannot obviate the youth prevailing party,” is the and con who filing timeframe for due for a reasonable holding, with our we must vacate the sistent Nevertheless, we find no process claims. February court’s 1994 order 90-day applying the rule to precedent awarding attorneys’ full fees in the amount of matters, special education though undoubt- find, however, $91,494.85. We the dis disputes edly applies limitation to aris- rejection trict court was correct its special ing school laws other than edu- under Education’s contention that Board of accurately matters. The district court cation court should disallow those fees associated expressly pertain noted that the rules which summary motion for with J.H.’s special do not contain a time judgment pertaining to a statute of limita limit, adopted 90-day and no caselaw has appeal. issue on We find that counsel tions context of the IDEA. The district good-faith rule has made “a effort J.H. correctly rejected 90-day request court rule here. exclude from fee hours that are [the]
excessive, redundant, or otherwise unneces sary,” billing judg and has exercised sound light Under the facts of this case Eckerhart, Hensley required ment as equities, recognizing operative all the U.S. acknowledging IDEA all policies of the 1939 - (1983) (citing Copeland v. Mar L.Ed.2d 40 regulations, we believe relevant statutes shall, (D.C.Cir.1980) (en adequately placed in that J.H.’s issue banc)). also find that the district court We pur with J.H.’s IEP for their dissatisfaction acceptance did not err its the $235 they poses of reimbursement at the time hourly charged by billing rate counsel for requested Sep an administrative light comparable J.H. as reasonable in process procedures tember of 1989. Due prevailing rates. only were not activated at that time because parties attempting negotiate a Furthermore, agree we with the district pro A formal settlement. court that the award of fees should not be eventually it cess was made when became partial reduced reflect J.H.’s counsel’s suc- apparent that a resolution could not other cess virtue of the district court’s refusal to negotiated. Although we cannot wise be award reimbursement costs for room and compensation past award for Bernardsville’s requested. board as The issue of reimburse- provide failure to free ment for residential costs involved a “com- education, jus we believe substantial mon core of facts” relative to the issue of by awarding tice can be achieved reimburse reimbursement, tuition was based on “related theories,” ment for tuition costs incurred while in at legal and cannot be viewed as a tendance at Landmark for the 1989-90 aca capable discrete claim of disassociation from year. demic We will affirm the district purposes awarding tuition claim for 435,103 Id. attorneys’ court’s award of reimbursement tuition costs fees. S.Ct. at 1940. Nevertheless, year, excluding prevail for the 1989-90 school since has failed to costs associated with room and board.16 on his claim for reimbursement costs for reject argument just proper 16. the Board of Education's belie this contention. Under a that reimbursement for academic equities consideration of the and the court's dis- precluded ground relief, should be incapable on the that it was cretionary power grant "appropriate" formulating timely IEP for that qualified power grant includes retro- given year, parents. the unilateral action of J.H.'s reimbursement, active we are convinced of the long history with J.H. and its Bernardsville's appropriateness of an award for continued contact with him and educational as- year. progress of his the unilateral act sessments after
161 litem, R.O., 1988-89, 90-1043, years slip we ad Civil Action No. academic (D.N.J. (“addition- 19,1992) Aug. court to calculate 1 op. remand to the district at 3 n. must 1415(e)(2) § reduced fee award to reflect al evidence” under 20 U.S.C. adjusted scope success. cumulative, of J.H.’s should not be introduced to im- credibility peach hearing administrative rv. witnesses, testimony nor embellish from the hearing, administrative and should not have Lastly, the Board of Education ar erroneously proffer during been available for court ex the adminis- gues that the district Caravello, hearing). Lynn of Dr. trative cluded the testimonies Special at the time the Director of Services We do not find error of law or abuse of Dis J.H. reentered the Bernardsville School in discretion the district court’s decision to Seelaus, trict in and Ms. Joanne school joint report exclude the on J.H.’s hearing psychologist, from the de novo motion in limine. The Bernardsville School court held. The Board of Education performance regard District’s to the joint by sought report prepared admit a developed IEP it for J.H. for the 1990-91 Dr. and Ms. Seelaus which includ Caravello prospective years and for are not anticipation of his ed a reevaluation joint at issue here and admission of the re- information relevant to the return and other port disposition would not affect the of this prepared for 1990-91 IEP case. During prior law hear- administrative judge law had exclud- ing, the administrative Nevertheless, report. Ms. Seelaus ed this V. testimony at the on the had offered portion We will thus vacate that of matters concern- Board’s behalf exclusive judgment district court’s November post-reentry experience. Dr. ing J.H.’s Ca- which awards J.H.’s reimbursement present-and available to ravello had also been for tuition at the Landmark School for the testify judge law before the administrative 1988-89, academic 1987-88 and and we 4, 1991, although testify. she did not June portion will affirm that which awards J.H.’s hearing, At the district court the court reimbursement for tuition at testimony part on the excluded Landmark for academic 1989-90. School subsequently developed IEP ground that the Although agree we with the district court’s 1990-91, not at issue in for J.H. which was designation “prevailing of J.H.’s as a present litigation, was irrelevant to the 1415(e)(4)(B), party” pursuant to 20 U.S.C. appropriateness issue attorneys’ we will the amount of fees vacate prior education offered to J.H. contest by set the district court order dated Feb- years. The district court further held ed ruary and remand to the district testimony that the would be cumulative and court for recalculation. testimony previ improperly embellish
would ously given hearing. at the administrative Court, No. 92-3694 Order of the District Civ. McKEE, Judge, concurring part Circuit (D.N.J. 1993). Sept. Burlington See v. dissenting part. Education,
Department 790- majority I concur with Part TV of the (1st Cir.1984) (“additional evidence” under addition, opinion. agree I that J.H.’s 1415(e)(2) “does not authorize parents are entitled to reimbursement repeat witnesses at trial to or embellish their year and thus concur the 1989-90 academic hearing testimony”; prior administrative majority opinion. with Part II B of the not allow trial court its discretion must However, I that J.H.’s are believe change evidence to the character of the “such entitled to be reimbursed for 1987-88 hearing from one of review to a trial de Therefore, respectfully 359, 105 as well. I ”), aff'd, 471 novo U.S. majority opin- (1985); Part II A of the Egg Township dissent from L.Ed.2d 385 Harbor S.O., by his ion. Board Education Guardian clearly impose does not a time limitation
I.
authority
grant
upon the district court’s
by allowing
timeli-
majority errs
majority
retroactive reimbursement.
parents’ request for due
ness of the
*13
effectively
the Act in a manner
has
amended
analysis.1 The ma-
to define and control its
purpose and
inconsistent with its
which is
jority states:
authority
the Act
the remedial
[Wjhere
more
proceedings were initiated
in
vests
a district court.
transfer,
years
we
than two
after J.H.s
equation
practical
the
place
must
into our
power
court’s
to award retroac-
A district
the school district to
opportunity afforded
authority
tive reimbursement arises from its
definitively
modify its IEP or to determine
provisions
grant relief that effectuates the
to
outside the
expenditures occurred
whether
Act.
of the
by the
could have been obviated
district
‘grant
the court to
such
The statute directs
We,
complaint....
of
filing
prompt
of a
appropriate.’
relief as
determines is
[it]
course, recognize that
the school district
ordinary meaning of these words con-
The
duty
provide
in
first instance to
has the
the
fers broad discretion on the court. The
IEP,
moreover,
appropriate
type
specified,
is not
ex-
of
farther
relief
preponderance at a
demonstrate
due
’
cept
‘appropriate.
that it must be
Absent
it
process hearing that
the IEP
offered
reference,
only possible interpre-
other
the
appropriate.
was indeed
With
fore-
‘appropriate’
tation is that relief is to be
mind,
must nevertheless also
most
we
light
purpose
of the Act.
practical reality, and
recognize that as a
as
Burlington
Department
School Comm.
procedural
a matter of
law of which J.H.s
of
Educ.,
471 U.S.
105 S.Ct.
right
fully apprised, the
of
were
of
(1985)
(emphasis
ingly,
is untenable
notice,
through
pro-
albeit not
a formal due
argument
it was not
maintain the
offered,
request,
wanted the
cess
the IEP it
problem
aware of
Land-
unmodified,
pay
district to
for the cost of
school
virtually
to J.H.
after
requested
have
in mark. The district could
progress, and
despite his lack of academic
hearings
adequacy
to have the
of its
Majority
order
regression.”
the face of his social
thereby
promptly
pre-
IEP
determined
Quite naturally,
par-
opinion at 157.
of,
very
complains
it
dissatisfied,
problem
vented the
now
and the school
ents
majority’s
notwithstanding the
conclusion
was well aware of their dissatisfaction.
obligation
imposes
Act
a unilateral
requested
that the
August
parents.
dispute
on the
“When a
arises be-
place
officials
Landmark.
par-
parents,
tween the board and the
either
Upon
refusal to do so the
the district’s
ty
right
has the
to resolve the matter
unilaterally
placed
ents
withdrew J.H.
proceeding
known
administrative
him
themselves.
at Landmark
”
‘impartial
process hearing.’ Las-
as an
cari,
(citing
provision PETITION FOR REHEARING SUR waiver, parental right sponsibility, Dec. judicial at the conclusion of reimbursement Moreover, provision if the proceedings. SLOVITER, Judge, Chief Present: parental rights to interpreted to cut off STAPLETON, MANSMANN, BECKER, reimbursement, purpose of principal HUTCHINSON, SCIRICA, GREENBERG, many Act will in cases be defeated ALITO, ROTH, COWEN, NYGAARD, way if reimbursement were the same as LEWIS, SAROKIN, MCKEE and Circuit Act intended available.... never Judges. ap- handicapped children both an give one; it propriate education and a free rehearing by appel- petition filed interpreted to defeat one or should not be having in the above entitled case been lees objectives. of those the other judges participated who submitted to of this court and to all other the decision at Burlington, 471 105 S.Ct. U.S. judges regu- circuit in available circuit are is different because we 2004. This case service, judge con- lar active and no who who withdrew their concerned *16 having for re- curred in the decision asked prior requesting administrative hear- child majority judges circuit hearing, and a Yet, us is analo- ings. the situation before regular circuit in active service not does Burlington and the difference gous to rehearing by court in having voted for Supreme to abandon the Court’s not allow us banc, rehearing is denied. petition reasoning. Hutchinson, Becker, Nygaard, Judges granted re- would have McKee Sarokin III. hearing. justice” by We do not achieve “substantial HUTCHINSON, BECKER, Judges 1989-90 ac- awarding reimbursement for the NYGAARD, would McKEE and SAROKIN requiring pay ademic rehearing. granted have tuition remaining two thirds of J.H.’s majority opinion expense. at 159-60. See reimbursement, seeking
These are merely re- damages. “Reimbursement
quires District] School [Bernardsville expenses that it should have
belatedly pay in the along and would have borne
paid all developed proper had it
first instance 370-71, 105 Burlington,
IEP.” 471 U.S. at at 2003. parents’ request for the 1987-88 and appropriate and academic to affirm the granted. Our failure
should be effectively court shifts most 1415(e)(3) current “During agree, in the then part: child shall remain 3. Section states pursu- any proceedings pendency placement....” conducted educational 1415], edu- (1988). ant unless the State or local 1415(e)(3) [§ agency ... otherwise cational and the