*1 аmendments, Under the PLRA court, courts the discretionary imposition of continue to have the authority to assess costs should be informed any factor by the against indigent prisoner. costs How relevant, court deems including pur- “the ever, the PLRA has provision added a to pose of statute, the pauperis the forma the in pauperis requiring statute forma history of party litigator, the as good faith payment for costs the same manner as and the actual dollars involved.” 16A C. payment the filing of the fee. See 28 Wright, A. Miller Cooper, & E. Federal 1915(f)(2)(A) (B); § U.S.C. & Tucker v. § Practice and Procedure 3985 at 710 n. 8 Branker, (D.C.Cir. 1294, 142 F.3d 1296-97 1998). prisoner “Because can no longer challenge the assessment of fees ... on CONCLUSION the grounds prisoner the is unable to assessment, pay the if a court In the chooses to absence any provision of in the prisoner costs, tax a prisoner the is re judgment of this court for the assessment quired pay to the assessment in full.” Tal Feliciano, of costs against the motion to Knebl, ley-Bey (6th v. 168 F.3d disallow granted. costs is The Clerk of Cir.1999) (citations omitted). Indeed, the Court will refrain from taxing the bill 1915(f)(2)(A) § reads: judgment the “If of costs by appellees. filed against prisoner includes the payment of costs subsection, under this prisoner required
shall be pay the full amount of
the costs (Emphasis ordered.” supplied). is, course,
It of the manner payment of 1915(f)(2)(B).1 prescribed §
that is by
Most pertinent to the motion be § fore us is the portion of pro T.R.; E.M.R., on Behalf of Their Minor vides for the payment of full costs in the Child, N.R., Appellants event that the judgment requires it. See 1915(f)(2)(A). provision This falls within provides the “law otherwise” language of KINGWOOD TOWNSHIP BOARD R.App. 39(a), Fed. P. which allows costs EDUCATION, OF Hunterdon be against appellants taxed when the judg Co., Jersey ment is affirmed provides “unless the law No. 99-5021. or court orders otherwise.” When we our summary issued order affirming United Appeals, States Court of judgment of case, the district court Third Circuit. we did not the payment order by costs Argued: Nov. Feliciano. Accordingly, the judgment en by terеd Clerk this Court under the Opinion Filed: March provisions of R.App. Fed. P. 36 contains no provision for costs. Unless spe there is a
cific direction by the court for payment by prisoner
of costs proceeding informa
pauperis, no may costs by be taxed
prevailing party. This in way no detracts
from the ability of a court to require, aas discretion,
matter of indigent pris costs, pay
oner or some part them.
Whether by assessed court district or Although 1915(f)(2)(B) refers process actual payment for is described in 1915(a)(2) payment, 1915(b)(2). manner *3 Headley, Sang-Jasey, D.
Linda Candice Inc., Advocacy, Jersey Protection Trenton, NJ, for Amici Curiae Counsel Appellants. Support of Lamb, Duff, (Argued), Esq. Brian J. DePascale, Kretzer, Reinman & Hartung, NJ, Appellee. Jersey City, Counsel for ALITO, BARRY, and Before: STAPLETON, Judges. Circuit *4 THE OF COURT OPINION ALITO, Judge: Circuit N.R., T.R. parents, his through Plaintiff E.M.R., against action brought this and Township Board of Edu- Kingwood (“the Board”) the Individuals under cation (“IDEA”), Act with Disabilities Education (1994), requesting §§ 1400-91 20 U.S.C. private school tuition for reimbursement N.R. claims that support services. and pro- failed to proposed placement Board’s educational meaningful him vide with environ- restrictive in the least benefit Dis- ment, IDEA. The required by as in summary judgment granted trict Court of the Board. favor holding affirm the Court’s We District provided placement Kingwood educational-benefit with a sufficient N.R. pub- appropriate a “free to constitute and However, vacate lic education.” place- Kingwood holding that the court’s en- restrictive the least ment constituted vironment, a determi- we remand for and failed Board оf whether nation state-qualified any appropriate, consider within a reasonable placements alternate residence. of N.R’s distance I. 7, 1991, September born on
N.R. was handi- preschool was classified as of summer During the in 1994. capped (Argued), Loughlin Loughlin Michaelene offi- met with Board parents N.R.’s Hackensack, NJ, Latimer, & Edu- an Individualized to discuss cials (“IEP”) for the for N.R. Program cation Stotland, Law The Education Janet J. child The Board’s year. PA, 1996-97 Philadelphia, Pennsylvania, Center had the that N.R. study team determined Appellants. for Counsel in begin kindergarten summary skills to the fall of judgment, and the District Court in placemеnt 1996 and recommended his granted summary judgment favor of the regular kindergar- School’s Board. The District Court found that the 2, 1996, August ten program. On howev- (consisting placement 1996-97 IEP er, rejected proposed T.R. E.M.R. Kingwood’s half-day preschool class and placement, stating they planned room) provided free, resource N.R. with a preschool year.1 send N.R. to for another appropriate public by offering more than a trivial education benefit. See time, At Kingwood Township did Educ., T.R. Kingwood, Township Bd. regular program offer a for (D.N.J.1998). F.Supp.2d 728-29 Rather, non-disabled children. the Town- pointed testimony The court ship single, half-day preschool offered a witnesses, expert Board’s Dr. Frances composed class of half disabled children Callanan, Hobbie and Dr. and half non-disabled Leslie who stat- children. The Board drafted a ed that the program new which would meet class, N.R.’s in this with after- N.R.’s educational needs. The court also noon in the school’s resource testimony referenced the of Darlene John- son, room. parents rejected pro- N.R.’s the teacher the Kingwood preschool posal they and informed the Board that class, who stated that she was familiar *5 planned spend to have year N.R. the next with N.R.’s IEP and imple- would work to at the Learning Rainbow Rascals Center ment it on daily a basis. (“Rainbow Rascals”), private daycare a addition, the District Court found previous center that N.R. had attended the that class constituted the time, year. At the Rainbow Rascals was least restrictive environment for un- N.R. preschool by accredited as a the State der the IDEA. Finally, See id. at 730. of Jersey by any independent or edu- the court held that Rainbow Rascals could cational agency. accreditation Neverthe- not be possible placement considered as a less, T.R. and E.M.R. requested that the for N.R. because it was not accredited pay Board for N.R.’s tuition at Rainbow the state. See id. at 730-31. provide Rascals and supplemental special N.R. parents appeal, and his seeking education services there. reimbursement for N.R.’s tuition at Rain- The process, Board filed seeking for due bow Rascals and for his therapy costs for a pro- determination that its 1996-97 IEP year. 1996-97 school vided N.R. with a appropriate public free jurisdiction We pursuant education in exercise the least restrictive environ- 1415(i)(2). to 20 ment as U.S.C. required by the IDEA. We exercise The Ad- plenary legal ministrative Law review of the Judge King- ap found that standard wood Township’s plied by kindergarten program the District Court. See Polk v. satisfied requirements the IDEA’S Susquehanna Central Intermediate Unit that 16, (3d the Board 171, Cir.1988). should not be liable for the 853 F.2d 181 How parents’ keep decision to ever, N.R. at Rainbow accept must the District Court’s Rascals. findings they of fact clearly unless are erroneous. See Oberti v. Board Educ. In April parents N.R.’s filed suit of Borough Dist., Clementon Sch. 995 on his behalf in They District of of Court. al- (3d 1204, 1220 Cir.1993). F.2d leged, alia, inter that the ALJ had erred in finding that proposed the Board’s IEPs II. had offered N.R. a appropriate public free education in the least restrictive environ- The IDEA requires states re ment. parties The filed ceiving cross-motions for funding federal under Act to 1. N.R. would garlen have turned five the week that until the age child has reached the of began, Jersey and New law does not six. require parent to enroll a child in kinder-
577
Polk,
“meaningful
all
and confer
benefit.”
ensures
policy
that
“in effect
have
182, 184.
to a free
right
F.2d at
disabilities
children with
20 U.S.C.
public education.”
appropriate
Court,
apparent
reliance
The District
1412(1).
satisfy
a state fails to
Where
precedents, focused its review on
on these
mandate,
have a
parents
statutory
IEP
was sufficient
[N.R.’s]
“whether
private school
to reimbursement
right
educational,
benefit on
confer an
nontrivial
Department
Burlington
tuition. See
of
T.R.,
him,”
it was.
and concluded that
Mass., 471
Commonwealth
Educ.
However, in our most
F.Supp.2d at 728.
359, 370,
L.Ed.2d
105 S.Ct.
U.S.
standard,
FAPE
explication of the
recent
that the Dis-
Appellants argue
provi-
held that
squarely
“[t]he
our Court
finding
that
erred
trict Court
merely
a trivial edu-
sion of
‘more than
IEP
N.R. with
1996-97
Board’s
the mean-
cational benefit’ does not meet”
public education because
appropriate
free
Polk.
requirement
ingful benefit
applied
legal
an incorrect
stan-
the Court
N.E.,
independent
an
Educ. v.
172 F.3d
Ridgеwood
failed to conduct
Bd.
dard and
(3d Cir.1999).
reject
argu-
in-
By failing
of the record. We
review
that the Dis-
Although
appears
it
ment.
into whether the Board’s
quire
legal
incorrect
apply
did
trict Court
meaningful
educational benefit on
confer
standard,
apparent
it
is also
N.R.,
the incor-
applied
the District Court
evi-
than sufficient
introduced more
Board
on this issue.2
legal
rect
standard
standard,
proper
prove, under the
dence to
the evi-.
Nevertheless,,we believe
preschool placement
relied
on which the District Court
denee
appropriate education
provided a freе and
strin-,
more
amply satisfies
somewhat
“FAPE”)
(hereinafter
for N.R.
“meaningful benefit” test. As
gent
construed
Supreme Court has
*6
noted, both Dr. Callanan
District Court
require
FAPE
to
mandate
the statute’s
to the benefits
and Dr. Hobbie testified
the
designed to meet
specially
“education
resource-room
N.R.
receive from
would
child,
handicapped
needs of the
unique
and
in
areas of communication
work
the
as are neces
by such services
supported
45.) Dr. Hobbie
(App.32,
motor skills.
‘to benefit’ from
sary
permit
to
the child
advantages of
noted the educational
also
Dist.
Hendrick Hudson
the instruction.”
includ-
preschool program,
Kingwood
the
176,
Rowley, 458 U.S.
188-
Bd. Educ. v.
aide,
size,
a full-time
small class
ing
3034,
89,
areas of need.... I would III. think tremendously that it would be ben- A. speech eficial for [N.R.] have some language therapy individually ... cer- The IDEA also contains a “main tainly in the I resource center would like streaming” component, requires which to see him get really some individual “procedures states to establish to assure *7 work speech language. on that, to the maximum appropriate, extent As far- component as the motor where he handicapped children ... are educated has difficulty, again some that could be with children who handicapped.” are not in special program. worked on that 1412(5)(B) (1994).3 20 U.S.C. We have interpreted this (App.45.) require mandate to that a placed disabled child be in the least re The District Court also cited Dr. Calla- (hereinafter “LRE”) strictive environment testimony, nan’s in which she further ad- provide that will him with a meaningful dressed specific capabili- N.R.’s needs T.R., educational benefit. “The least ties. See restrictive F.Supp.2d 32 at 729. Dr. that, environment is the one opined great Callanan to the particular that “N.R.’s dif- possible, extent satisfactorily ficulties” did est full-day pre- educates necessitate program. school disabled (App.8.) together noted that children with She children participation disabled, N.R.’s in lunch and recess in who are not in the same school Kingwood the program provide would “ad- the disabled child if would attend the child 1997, IDEA, Congress In amended the reco- segregat- formulas not result in restrictive or difying 1412(a)(5)(B) the placements, definition of least restrictive envi- ed (1998 see 20 U.S.C. 1412(a)(5)(A) (1998 ronment at 20 U.S.C. Supp.). Kingwood Because the Supp.) 1997, adding provision a new prior that re- was formulated the amend- quires special that state funding apply ments do not in this case.
579
IDEA,
than a
more restrictive
terms of the
Area Sch.
Carlisle
not disabled.”
were
Cir.1995).
(3d
R,
preschool
fully-mainstreamed
535
“regular,”
62 F.3d
Scott
Indeed,
that the District Court
contend
Appellants
Kingwood
would be.
the
class
finding
in
that the
erred
philosophy
statement of
states
program’s
LRE
N.R. We
was the
program
designed
“has
to meet
it
been
appellants that
Court
with the
agree
Township students
needs of
potential
investigate
adequately
failed
five who have an iden-
ages
through
three
we remand for
placements, and
alternative
a measurable
disabling condition or
tified
of this issue.
consideration
and who would
developmental impairment
(App.100)
education.”
special
benefit from
Oberti,
adopted a
this Court
added).
(emphasis
with
assessing compliance
two-part test for
First,
the Court
requirement.
LRE
IDEA does not
Certainly, the
in the
“whether education
must determine
contemplate
all-or-nothing
“an
educational
classroom,
supple
the use of
with
regular
handicapped
in which
children at
system
services, can be achieved
mentary aids and
special
or
education.”
regular
tend either
Oberti,
B. *8 testimony, it seems undisputed on this make a peculiar facts of this ease The could have received clear that N.R. application of the Oberti test mechanical reg from a educational benefit meaningful correctly As the District Court difficult. Moreover, there no is ular classroom. noted, preschool program behavior would have contention that his typical ‘regular described as a “cannot be disruptive to other students. been class,’ special typical nor is it a course, not that does a district Of class; in are half the children the class is not preschool program operate regular preschool child liv- handicaрped, any and in simply order to initiate one required Township may apply to in ing opportunity LRE for disabled create an T.R., F.Supp.2d program.” attend 300.552, § Note child. See 34 C.F.R. Nevertheless, that the it is clear at 730. (1996). However, district is re- is, the school class under Kingwood preschool quired 1401(a)(18)(D), to take into account a continuum of § law. Under 20 U.S.C. possible placement options alternative appropriate public the “free and edu- IEP, when formulating including cation” required under IDEA must “meet “[pjlacing pri- children with disabilities in the standards of the State educational programs vate school for nondisablеd agency.” federal Although regulations en- school children.” Id. Under these cir- placing vision “regu- disabled children in cumstances, the District Court erred in not classes, private lar” school the universe of inquiring into regular whether classroom private programs may that a state consid- options were available within a reasonable partly er is at by least defined state law. IEP, implement distance to N.R.’s and we regulations place Under the state in at remand may so District Court consider formulated, the time the 1996-97 IEP was question. Jersey’s program options IDEA placement approved private included “[a]n C. handicapped,” for the ac- “[a]n We next appellants’ address the conten- nonpublic credited school which spe- is not tion that the Board and the District Court cifically approved for the education of chil- specifically failing erred to include Rain- dren with educational disabilities.” bow Rascals in the continuum of available (1997).4 N.J.A.C. 6:28-4.2 regula- The programs. Appellants claim that Rainbow “approved tions defined an private school provided Rascals would have N.R. with a handicapped” for the “an incorporated as appropriate public free and education in entity approved by Department of Ed- the least restrictive environment and that ucation ... to provide special education placement the state’s of N.R. in King- and related pupils services to with edu- preschool program, wood rather than in cational disabilities.” N.J.A.C. 6:28-1.3 Rascals, Rainbow was in error. undisputed It is that Rainbow Rascals lacked approval. such matter, aAs substantive it seems likely that the Rainbow program, Rascals regulations permitted place- also accreditation, aside from its lack of could ment in a non-approved, private acсredited have N.R. with an FAPE. For school “with the consent of the Commis- example, experts the Board’s admitted sioner by [of Education] or an order of a that N.R. had made gains substantial dur court competent jurisdiction.” N.J.A.C. ing placement his 1995-96 at Rainbow 6:28-6.5(a) (1997). Accreditation under 48.) (App.25, addition, Rascals. Rain regulation required “the on-going, on- bow Rascals’ fully classroom was main site evaluation of a nonpublic school by a streamed and thus less restrictive under governmental independent or educational the IDEA than Kingwood preschool accreditation agency which is upon based program. Therefore, unless the state was written evaluation criteria that address ed- barred from considering Rainbow Rascals programs services, ucational school fa- on its continuum of alternative placements cilities and school staff.” N.J.A.C. 6:28- reason, for some other the Board would 6.5(b)(1) (1997). Rainbow Rascals was required have been approve the Rain by accredited as any state or bow Rascals as the provid one independent agency at the time the IEP ing an FAPE in the LRE. formulated, was and there showing is no
Nevertheless, agree personnel with the its possessed profes- District Court’s conclusion that the sional Board was not certifications and licenses required required 6:28-6.5(b)(5). to consider Indeed, Rainbow N.J.A.C. S *9 Rascals because that program was not Rainbow only Rascals’ license at the time properly accredited under Jersey New daycare was as a (App.119.) center. Ac- However, 4. The Jersey sections of the New pre-amendment Administra- the regulations tive dealing special Code with education were govern this case. repealed and recodified as amended in 1998. program which was not on the state’s eligible for vate it was not cordingly, list,” provide but which did a “apprоved with the con- even regulation, under Supreme FAPE. The Court substantive Department of Edu- the state sent re- parents held that the were entitled to cation.5 though even the school imbursement was neither Rainbow Rascals Because the state approval, state because lacked as a nor accredited approved requirement standards U.S.C. law, for ineligible it was Jersey New under 1401(a)(18)(D) only place- to applies § by the state under placement consideration authority. id. by public ments made a See 1401(a)(18)(D).6 Accordingly, the Board § 13-14, 361; also Warren at 114 S.Ct. see it when by failing to consider did not еrr Dist., 190 County Sch. G. Cumberland IEP. preparing N.R.’s (1999). F.3d 80 reimburse- require Florence does not D. Rainbow Rascals appellants’ ment that, appellants contend Finally, and G. placement. Both Florence Warren not an avail if Rainbow Rascals was even require- the FAPE disputes over involved they are option placement, for state able not address the situation They ment. did for reimbursement nevertheless entitled case, the state- we face in this where both placement under unilateral for their own (accredited) parent- and the chosen school District Four v. County School Florence (unaccrеdited) provide school would chosen Carter, 510 U.S. S.Ct. FAPE, the unaccredited an but where (1993). Florence, the In L.Ed.2d 284 provide a less re- arguably school would proposed placement a which district school Flor- Extending strictive environment. child provide failed to require the court found would ence to these circumstances maximally optimal parents rejected with an FAPE. The a state to ensure child, if such for each even LRE pri- the child and enrolled placement, regulations in untrue. The accreditation regulations in force in is special 5. alia, gen- apparently required, what was time inter 1996 did сontain effect at the provision, which eral waiver ongoing, on-site evaluation of there be requirements "[e]xceptions of this to the independent government or ac- by a prior only with writ- chapter shall be [m]ade evalua- agency based on written creditation approval Department of the of Education ten through criteria, 6:28-6.5(b)(1) see N.J.A.C. tion period county ... for a not its office (1997); personnel providing educational § 6:28-4.6 year.” one N.J.A.C. to exceed appropriate edu- services hold or related Nevertheless, not believe that we do certifications, N.J.A.C. 6:28- catiоnal see required Jersey to make an the IDEA 6.5(b)(5) (1997); pupil receive and that unaccredited, unapproved exception for an required be comparable to that to program Requiring a Rascals. program like Rainbow the rele- provided by public schools under ignore educational to its substantive state regulations, N.J.A.C. see vant statutes exception by forcing it to make an standards 6:28-6.5(b)(6) (1997). is no record There provides a non-qualifying school whenever a any of Rascals met that Rainbow evidence than less environment somewhat restrictive Moreover, the dis- criteria. substantive thesе (which approved school also offers an at the rele- that "the State sent’s contention FAPE) effectively replace student accrediting private was not point vant in time case- with the federal courts’ state standards the record. preschools” is without basis in appro- by-case determinations of educational imposed some sort Even if the state had reading would render priateness. Such a moratorium, 1401(a)(18)(D) Rascals nullity. Rainbow As the Su- accreditation a virtual Rowley, qualify IDEA for IDEA emphasized in been free to preme Court would still have primacy "displace the obtaining from placement by was intended accreditation but rather "to in the field of education” following states did the private agency it in fact —as extending sys- their educational assist them in short, that New is no evidence year. there handicapped.” U.S. at tems to approval standards Jersey's accreditation 102 S.Ct. systematically avoid the being used were obligations under state’s affirmative Jersey’s ac- suggests that New 6. -The dissent IDEA. formality, requirement was a mere creditation This any criteria. substantive unconnected *10 placement any qualify- is not available wood placement constituted the re- least environment, within a ing school reasonable distance. strictive and remand for ad- ditional proceedings consistent with this language Florence’s own forecloses such opinion. interpretation. gives parents Florence right to reimbursement for a unilateral STAPLETON, Judge, Circuit placement non-qualifying in a only school Dissenting: “if a federal court concludes both that the that, The Court although concludes public placement violated IDEA and that “public agencies operate pro- that do not private placement school proper was grams for non-disabled children Florence, under the Act.” 510 U.S. at required are not to pro- initiate such added). (emphasis By S.Ct. 361 its grams,” regulations impose the federal do terms, two-pronged this is a inquiry. upon duty them an affirmative to make all question threshold here focuses on the reasonable efforts to find alternatives that first prong viz., pro- whether the Board’s — provide will the LRE. 34 C.F.R. posed placement by violated the IDEA (1987); § 300.552 Note see also 34 C.F.R. failing to consider Rainbow Rascals. The § 300.551. This includes the alternative parental reimbursement mandate comes “[pllacing children with in pri- disabilities play into if only yes we answer to this programs vate school for non-disablеd question. initial children.” 34 C.F.R. 300.552 Florence, while that holding parents are I agree. Note. 1401(a)(18)(B)’s by § not bound state stan- concludes, The Court also requirement, quite proper- dards did suggest not that ly, that Rainbow Rascals required permitted— the state is even was available to —or provide N.R. with a free and statutory appropriate overlook that mandate and public in wholly placements integrated consider that do not meet its It substantive educational environment. standards. nevertheless relieves the Such Board of reading go against plain any duty provide Education of lan- N.R. guage of the statute and аccess to that render the education because state 1401(a)(18)(D) Rainbow Rascals requirement standards was not “accredited or approved” under nullity. applicable Because we regu- have found that state lation at the placement Board did not err in time the decision rejecting Rainbow was made. I potential placement, Rascals as a would have no quarrel with can- “public holding if the record placement find indicated that violat- Rainbow grounds. course, ed IDEA” on Rascals failed to meet these if education- Of al criteria established District Court on the State. See 20 remand finds that 1401(a)(18)(D) (the U.S.C. improperly Board FRAP re- failed to consider quired potential other under IDEA must placements “meet the stan- that met New (see dards of the Jersey’s State educational part agency.”). substantive standards III(B), case, however, The record in supra), may the state have does not failed to suggest any there obligations meet its are such criteria under the IDEA Rainbow failed reimbursement for the Rascals to meet. Rainbow What the Rascals record does may affirmatively establish be available is that under Flor- at point ence. State the relevant in time was not accrediting private preschools, and IV. that although state law for a We affirm the holding of the District waiver of the approved” “accredited or Court 1996-97 requirement, see N.J. Admin. Code 6:28- provided N.R. with an FAPE. We (Supp.1994), vacate 4.6 no request for a waiver the District holding Court’s that the King- was made.1 If a easily state can so avoid In addition pri- preschools approved accredited men! in "in facilities.” schools, vate state place- law also authorized *11 provide a free duty to its affirmative in the least
appropriate public environment, promise of the
restrictive many. For that illusory for
IDEA will be I
reason, I dissent. respectfully with instructions and remand
reverse tuition reimbursement.
grant HOLMES, by par- a minor
Rebecca H. guardians Ed natural
ents Holmes, wife; Debby his
Holmes and Debby Holmes, Holmes; in their
Ed right
own SCHOOL
MILLCREEK TOWNSHIP
DISTRICT, Appellant 98-3428, 98-3482.
Nos. Appeals,
United States Court
Third Circuit. 23, 1999
Argued March
Opinion Feb. filed 6:28-1.1(e)(3) any list of (Supp. the State maintained Admin. Code N.J. however, reflect, 1994). "approved facilities.” schools in does not The record