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Hallen v. Union Beach Board of Education

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


November 19, 1998

JONARLEN HALLEN, BY HIS PARENTS AND NEXT FRIENDS, JOHN HALLEN AND WENDY HALLEN,
PLAINTIFFS,
V.
UNION BEACH BOARD OF EDUCATION, BARRY WEINER, DIRECTOR OF SPECIAL SERVICES, UNION BEACH BOARD OF EDUCATION, IN HIS OFFICIAL CAPACITY, NEW JERSEY DEPARTMENT OF EDUCATION, BARBARA GANTWERK, DIRECTOR, OFFICE OF SPECIAL EDUCATION PROGRAMS, NEW JERSEY DEPARTMENT OF EDUCATION, IN HER OFFICIAL CAPACITY,
DEFENDANTS.

The opinion of the court was delivered by: Robert B. Kugler United States Magistrate Judge

CAMDEN VICINAGE

HONORABLE JOSEPH H. RODRIGUEZ

Doc. No. 20

OPINION

Presently before the Court is Plaintiffs' motion seeking leave to amend the complaint to add as a defendant the Division of Developmental Disabilities of the New Jersey Department of Human Services ("DDD"), and change the caption to reflect the appointment of Jonarlen's parents as his legal guardian.

Plaintiffs' motion for leave to amend the caption to reflect the Hallen's appointment as legal guardians was not opposed and is GRANTED, and for the reasons discussed below, Plaintiffs' motion to further amend the complaint to add DDD as a party is DENIED.

Background

Plaintiffs filed their complaint on June 4, 1997, and amended it on January 28, 1998, seeking, among other things, enforcement of a consent order entered by an Administrative Law Judge against the Union Beach Board of Education, Barry Weiner, Director of Special Services, Union Beach Board of Education (collectively the "Union Beach Defendants"), the New Jersey Department of Education the ("DOE"), and Barbara Gantwerk, Director, Office of Special Education, Department of Education (collectively the "State Defendants"). See Plaintiffs' September 22, 1998 Letter Brief in Support of Motion for Leave to Amend the Complaint at 6.

Plaintiff Jonarlen Hallen is a nineteen-year-old autistic child with severe mental retardation. See id. at 2. In April, 1993, after Jonarlen's behavior became increasingly dangerous to himself and others, his parents, Plaintiffs John and Wendy Hallen, requested that the Union Beach Defendants place him in a residential education facility. See id. at 2-3. At the same time, the Hallens requested that DDD also place Jonarlen in a residential facility. See id. at 3. Union Beach agreed to fund the day school costs of Jonarlen's placement if the DDD funded the residential costs. See id.

DDD eventually placed Jonarlen in a residential facility, which did not include an educational component, known as a "skill development home." See id. Plaintiffs claim that this home is analogous to a foster home and does not address the majority of Jonarlen's developmental needs. See id. The Hallens administratively appealed Jonarlen's placement in the skill development home. See id. at 4. The appeal was settled in June, 1994 and DDD agreed to place Jonarlen in an educational residential facility. By January, 1995, Jonarlen had not yet been placed in the educational setting and the Hallens requested mediation through the DOE. See id. at 4-5. The mediation was unsuccessful and the Hallens initiated an administrative "due process" hearing. See id. at 5. Before the hearing took place, the case was settled among Plaintiffs and the Union Beach and State Defendants, and a consent order was entered by an Administrative Law Judge. See id.

As of September, 1996, Jonarlen was still residing in the DDD skill development home. See id. The Hallens petitioned the DOE to enforce the terms of the consent order against DDD. See id. The DOE declined, claiming that it had no authority to enforce the consent order against DDD, which was not a party to that administrative proceeding. See id. at 5-6. In their complaint, Plaintiffs seek, among other things, enforcement of that consent order or, in the alternative, to have the Court declare that Jonarlen is entitled to the terms of the consent order entered into among Plaintiffs, the Union Beach Defendants and the State Defendants.

Before and after Plaintiffs filed their complaint, the DDD has maintained that it will cooperate with the Hallens to place Jonarlen in an appropriate educational residential care facility. See id. at 8. To that end, a private company, New Horizons in Autism, Inc., is developing under contract with the DDD a residential treatment facility in which Jonarlen will be placed. See id.

On September 8, 1998, DDD adopted regulations that require it to impose costs on clients or their families if certain financial requirements are satisfied. See id. at 8-9 (citing N.J.A.C. 10:46-1.1, et seq.; 30 N.J.R. 3271). The regulation sets forth a complex financial formula that is used to determine if clients and/or their families are liable for costs incurred for the client's care. See id. In their proposed second amended complaint, Plaintiffs claim that the DDD has adopted these regulations and seek an injunction preventing enforcement of the regulation against them. See Proposed Second Amended Complaint at ¶ 36 and p. 21 ¶ E.

Plaintiffs moved this Court for leave to amend their complaint to add DDD as a defendant. In their initial moving papers, Plaintiffs made a two-fold argument. First, they claim that if they are successful in this action against the Union Beach and State Defendants and this Court declares that Jonarlen is entitled to the residential setting he seeks, they will have no means to enforce the judgment if DDD is the entity that actually is providing for Jonarlen's care. See Plaintiffs' September 22, 1998 Letter Brief at 12. Second, Plaintiffs claim that if DDD is the entity providing Jonarlen's care and it imposes the cost- sharing regulation on the Hallens, that action will deprive him of the free and appropriate public education to which he is entitled under federal law. See id. at 13.

In their initial opposition papers, Defendants first point out that amendments to pleadings were to be completed on or before January 23, 1998 pursuant to the scheduling order entered by Judge Hughes. See The State Defendants' October 8, 1998 Letter Brief in Opposition to Plaintiffs' Motion for Leave to Amend at 7. Defendants also claim that they would suffer prejudice if Plaintiffs are permitted to amend their pleading at this late stage of the litigation in that they would have conducted discovery differently had DDD been joined at an earlier date and, if DDD is now joined in this action, discovery will have to be extended. See id. at 9-10. Defendants devote the remainder of their opposition brief to a largely irrelevant argument that Plaintiffs' claim that DDD is a necessary party to this litigation is incorrect and that even if DDD is necessary, Plaintiffs should have joined it earlier. See id. at 11-12. Finally, Defendants argue that this is not the appropriate forum for a facial challenge to DDD's cost-sharing regulations. See id. at 13.

On October 23, 1998, the parties appeared before the Court for oral argument. Before Plaintiffs addressed the substance of their argument, The Court raised the issue of Plaintiffs' standing to bring a claim against DDD. On October 25, 1998, the Court ordered the parties to provide the Court with supplemental briefing on the issues of standing and jurisdiction.

Plaintiffs' supplemental brief focuses on the recently adopted DDD cost-sharing regulation. Plaintiffs state that "[o]ne of the primary goals of [their] seeking to add DDD as a party defendant in this matter is to prevent DDD from imposing fees upon Jonarlen in contravention of his rights under the IDEA." Plaintiffs' November 6, 1998 Supplemental brief at 5. The primary right that Plaintiffs assert is Jonarlen's right under federal law to a free and appropriate education. See id. at 4. Plaintiffs argue that the DDD cost-sharing regulation will be applied to Jonarlen because the language of the regulation compels the DDD to do so. See id. at 5. Relying on a decision from the Ninth Circuit Court of Appeals, Plaintiffs claim that they need not wait until the regulation is actually applied to them to have standing to challenge the its legality. See id. at 6. Plaintiffs argue that the "imminent action of DDD constitutes a sufficient injury-in-fact so as to confer standing upon the Plaintiffs to prevent DDD's imposition of fees against Jonarlen." See id. at 7 (internal quotations omitted).

The State Defendants argue that Plaintiffs have not demonstrated that they have suffered injury-in-fact at the hands of DDD and, thus, they cannot maintain a claim against it. See The State Defendants' November 5, 1998 Supplemental Brief at 3-4. The State Defendants claim that Plaintiffs' admission that they have not asserted any new legal claims against DDD in the second amended complaint is fatal to their petition for leave to amend. See id. at 4-5. Additionally, the State Defendants argue that Plaintiffs' claims against DDD are not ripe for consideration because the DDD cost-sharing regulation has not yet been applied to Plaintiffs. See id. at 5-6.

The Union Beach Defendants assert the same legal argument as the State Defendants regarding the standing issue. See Union Beach Defendants' November 6, 1998 Supplemental Brief at 7-13. However, the Union Beach Defendants also point out that Plaintiffs successfully opposed Union Beach's efforts to join DDD in the due process hearing that resulted in the consent order, and that Plaintiffs have now taken an inconsistent position regarding the joinder of DDD. See id. at 2-5.

Discussion

The Federal Rules of Civil Procedure provide that a party may amend his pleading once before a responsive pleading is served, or thereafter upon leave of court or on consent from his adversary. Fed. R. Civ. P. 15(a). The rule states that "leave should be freely given when justice so provides." Id. The decision whether to grant leave to amend rests with the sound discretion of the trial judge and will be overturned on appeal only upon a finding of abuse of discretion. Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654 (3d Cir. 1998) (citing Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984)). Additionally, leave can be granted at any time during the litigation, even after judgment or on appeal. See 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 1488 (West 1990). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178 (1962).

The Third Circuit has adopted a particularly liberal approach to the amendment of pleadings to ensure that "a particular claim will be decided on the merits rather than on technicalities." Dole Arco Chemical Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citing 6 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 1471 (West 1990)). However, the allowance should not be automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indemnity Co., 151 F.R.D. 570, 574 (D.N.J. 1993). Leave should be granted absent a showing of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of amendment, etc." Foman, 371 U.S. at 182. See also Heyl & Patterson Int'l, Inc. v. F.D. Rich Housing of the Virgin Islands, Inc., 663 F.2d 419, 425 (3d Cir. 1981), cert. denied sub nom., F.D. Rich Housing of the Virgin Islands v. Government of the Virgin Islands, 455 U.S. 1018 (1982).

A. Prejudice and Undue Delay

Defendants initially opposed the petition for leave to amend on the grounds that they would suffer prejudice by the amendment given the late stage of this litigation. Indeed, the Third Circuit has emphasized that "prejudice to the non-moving party is the touchstone for the denial of an amendment." Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (citations omitted). See also Slade v. Fauver, Civil No. 90-1417, 1990 WL 153960, *3 (D.N.J. Sept. 24, 1990). However, the non-moving party must show more than the mere possibility of delay or the need for additional discovery should leave be granted. Dole, 921 F.2d at 488; Miller v. Beneficial Management Corp., 844 F. Supp. 990, 999 (D.N.J. 1993). The non-moving party bears the burden of showing that "it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the . . . amendments been timely." Heyl, 663 F.2d at 426; Bechtel, 886 F.2d at 652. For example, in Dole the court held that the non-moving party's claim of prejudice based upon its need to re-draft motions for summary judgment that had been filed before amendment was sought, together with its claim that it would need additional discovery, did not rise to the level of prejudice required in this circuit before leave will be denied. 921 F.2d at 488; see also Miller, 844 F. Supp. at 1000 (rejecting the need for additional discovery as a grounds for finding prejudice that would justify denying leave to amend).

Applying these principles here, Defendants have not demonstrated to the Court sufficient prejudice to reject Plaintiffs' petition for leave to amend. Defendants' argument merely points out that Plaintiffs' application is untimely and makes conclusory and vague claims that they will be prejudiced. The only specific incidence of prejudice that Defendants cite is that they will have to conduct additional discovery if leave is granted. As discussed above, delay or the need to conduct additional discovery alone is insufficient to show prejudice under Rule 15(a). Defendants have not even attempted to show that they "have been unfairly disadvantaged or deprived of the opportunity to present facts or evidence" that they would have developed had amendment been sought on a more timely basis. Heyl, 663 F.2d at 426; Bechtel, 886 F. 2d at 652. While an amendment at this late stage of the litigation may not be an ideal situation, the burdens it imposes in this situation does not rise to the level of prejudice required in this circuit to deny the petition. See Heyl, 663 F.2d at 426 (affirming trial court's grant of leave to amend made during opening statements of trial). But see Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990) (then Magistrate Judge Simandle held that "prejudice to the opposing party is greater where the tardy amendment will require the reopening of discovery" than when the amendment asserts a new purely legal theory). *fn1

B. Futility of Amendment

"In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency, or futility of amendment." Heyl, 663 F.2d at 425 (citing Foman, 371 U.S. at 182). See also Bechtel, 886 F.2d at 652-53; Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 74 (3d Cir. 1994); Caldwell v. KFC Corp., 958 F. Supp. 962, 966 (D.N.J. 1997); Oquendo v. Bettcher Indus., Inc., 939 F. Supp. 357, 360-61 (D.N.J.), aff'd, 118 F.3d 1577 (3d Cir. 1996). "Futility of amendment is shown when the claim or defense is not accompanied by a showing of plausibility sufficient to present a triable issue." Harrison Beverage, 133 F.R.D. at 468 (internal quotations omitted). See also Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 74 (3d Cir. 1994); Reaves v. Sielaff, 382 F. Supp. 472, 474-75 (E.D. Pa. 1977) (denying leave to amend because plaintiff did not have standing to litigate amended claims for injunctive relief). Futility of amendment means that the complaint as amended does not state a claim upon which relief can be granted. See In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997). If the amendment would not withstand a motion to dismiss, leave must be denied. See Miller, 844 F. Supp. at 1001; see also Fishbein Family Partnership v. PPG Indus., Inc., 871 F. Supp. 764, 768 (D.N.J. 1994) (applying motion to dismiss standard to claim of "futility of amendment" when third-party defendant sought to name additional party). "This does not require the parties to engage in the equivalent of substantive motion practice upon the proposed new claim or defense; this does require, however, that the newly asserted [claim] appear to be sufficiently well-grounded in fact or law that it is not a frivolous pursuit. Harrison, 133 F.R.D. at 469. Accordingly, "the Court must accept as true the allegations in [the proposed amended complaint] and construe those allegations in the light most favorable to the [plaintiffs]. Miller, 844 F. Supp. at 1001.

Examining Plaintiffs' proposed second amended complaint in a light most favorable to Plaintiffs and assuming all allegations contained therein as true, the Court finds that the amended complaint could not withstand a motion to dismiss under Fed. R. Civ. P. 12(b)(1) because Plaintiffs do not have standing to bring a claim against DDD. Plaintiffs lack standing to bring DDD into this action because they have not alleged any injury-in-fact resulting from any action or omission on the part of DDD. Moreover, Plaintiffs' claims that imposition of the DDD cost-sharing regulation violates Jonarlen's rights to a free public education is not ripe for consideration because the regulation has not yet been applied to Plaintiffs and Plaintiffs have been assessed no costs whatsoever for the DDD's planned placement of Jonarlen.

1. Standing

Plaintiffs' proposed second amended complaint does not allege that they have suffered any "injury-in-fact" resulting from the actions or omissions of DDD. Supreme Court cases "have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury-in-fact--an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of--the injury has to be fairly . . . trace[able] to the challenged action of the defendant and not . . . th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 540 U.S. 555, 561 (1992) (citations and internal quotations omitted).

In their proposed second amended complaint, Plaintiffs do not allege to have suffered any actual or imminent injury at the hands of DDD. DDD is mentioned in the introductory statement of the amended complaint as a necessary party to "ensure that complete relief can be accorded to the Plaintiffs." Second Amended Complaint at ¶ 1. In the "Factual Allegation" section, Plaintiffs claim that Jonarlen currently is housed in a community care facility operated by DDD. See id. at ¶ 14. Plaintiffs also allege in this section that Jonarlen has not received the appropriate care in this facility as required by the consent order entered among the State Defendants, the Union Beach Defendants and Plaintiffs, but claim that DDD has agreed to place him in such a facility that is currently under development. See id. at ¶¶ 33 and 34. Finally, Plaintiffs claim that DDD adopted the cost-sharing regulation that requires some clients to pay costs for their care. See id. at ¶ 36. Nothing in this section alleges that DDD is liable to Plaintiffs, or that Plaintiffs seek injunctive relief from any action or omission on the part of DDD that violated Plaintiffs' rights.

Count I of the proposed second amended complaint alleges that the current defendants are in violation of the consent order entered by the Administrative Law Judge in 1995. The DDD was not a party to that order, nor a party to action that generated that order. Therefore, Count I does not allege a claim against DDD. *fn2

Count II alleges that the State Defendants and the Union Beach Defendants are obligated to provide the services enumerated in the consent order under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400, et seq. The DDD is not mentioned in this count and no claim is asserted against DDD.

Count III alleges that DOE and its director's failure to coordinate state services provided by different state agencies, including DDD, violates the IDEA. While the DDD is mentioned as one of the state entities that the DOE fails to coordinate with, see ¶ 57, this count does not allege that the DDD itself is in violation of the IDEA. The claims in Count III are only asserted against the DOE and its director.

Count IV alleges that the current defendants have violated section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), by failing to provide Jonarlen with the educational resident placement described in the consent order. This count alleges that the DOE and its director failed to provide Jonarlen with the needed services "because similar services may be available through DDD." Id. at ¶ 68. However, Count IV does not allege that DDD itself is in violation of section 504 of the Rehabilitation Act. Indeed, Plaintiffs do not even make the predicate allegation that would bring DDD within the scope of the statute--that the DDD receives federal funds. No claim is asserted against DDD in Count IV.

Count V alleges that the DOE and its director are in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), because they failed to provide Jonarlen with services that are provided to individuals without disabilities. The only place DDD is mentioned in this count is in an allegation that accuses the DOE of shifting its responsibility to provide educational services to DDD. See id. at ¶ 79. There is no claim against DDD under ADA in Count V. As in Count IV above, Plaintiffs do not make the predicate allegation against DDD that it is a "public entity" that would bring it within the ambit of the ADA.

Count VI alleges that the DOE and its director violated Plaintiffs Fourteenth Amendment rights by failing to have procedures to enforce the consent order entered in 1995. DDD is not mentioned in this count and, therefore, there is no claim asserted against DDD. Again, DDD was not a party to the 1995 consent order.

Count VII alleges that the Union Beach Defendants breached a contact with Plaintiffs. DDD is not mentioned in this count.

In their prayer for relief, Plaintiffs seek some relief from all defendants and some from particular defendants. Paragraph A seeks an injunction against all defendants requiring them to comply with the consent order entered in 1995. DDD was not a party to that action and is not bound by the terms of the order.

Paragraph B seeks to enjoin all defendants to provide Jonarlen with a free, appropriate public education. It does not appear that DDD has a constitutional or statutory duty to provide the relief sought and there is nothing in the complaint that suggests Plaintiffs are arguing that DDD has such a duty.

Paragraph C seeks a declaration that all defendants have violated the IDEA, section 504 of the Rehabilitation Act, the ADA and the Fourteenth Amendment. The DDD was not alleged to have violated any of these statutory or constitutional provisions. DDD is not therefore a party against whom Plaintiffs seek such a declaration.

Paragraph D vaguely seeks an injunction against "Defendants to cease discriminating against Plaintiffs." No count in the complaint alleges that the DDD has discriminated against Plaintiffs.

Paragraph E seeks to enjoin DDD from enforcing the cost-sharing regulation. However, no count in the second amended complaint alleges that the cost-sharing regulation violates some constitutional or statutory law. The only mention of the regulation is in ¶ 36, which only states that the regulation exists. Moreover, as discussed more fully below, this "claim" is not ripe for consideration.

Paragraph F seeks to enjoin DDD "to preserve the group home placement that is under development for Jonarlen Hallen." There is no allegation anywhere in the complaint that DDD is not doing so, or even an allegation that it might not do so in the future. In fact, the complaint alleges that DDD has promised to place Jonarlen in the type of placement he seeks and is in the process of developing just such a facility. See id. at ¶ 33-34.

Paragraphs G and H do not seek any relief against DDD, Paragraph I seeks attorneys fees and Paragraph J seeks any other relief the court deems appropriate.

The Court is unable to find any claim, much less a colorable claim, asserted against DDD. Plaintiffs have failed to allege any injury-in- fact suffered as a result of any action or omission by DDD, nor have they alleged that DDD has violated any law. Assuming all of the allegations in Plaintiffs' proposed second amended complaint as true and examining those claims in a light most favorable to Plaintiffs, there is no case or controversy between Plaintiffs and DDD and, therefore, Plaintiffs do not have standing to assert a claim against DDD under Article III of the United States Constitution.

2. Ripeness

"The question of whether future injury is sufficient is at times addressed as a question of standing [and] at times as a question of ripeness." 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Civil 2d § 3531.4 (West 1984). "Federal Courts lack competence to rule definitively on the meaning of state legislation . . . nor may they adjudicate challenges to state measures absent a showing of actual impact on the challenger. Arizonans for Official English v. Arizona, __ U.S. __, 117 S. Ct. 1055, 1059 (1997) (citations omitted). The doctrine requires that an actual controversy exist between the parties, as opposed to a hypothetical series of events that would require the court to opine what the law would be if certain actions took place. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). "The central concern is whether the case involves uncertain or contingent future events that may not occur as anticipated, or indeed may not occur at all." Id. See also Texas v. United States, __ U.S.__, 118 S. Ct. 1257, 1259 (1998).

Plaintiffs' "claims" against DDD based on its cost-sharing regulation are not ripe for consideration by a federal court because the regulations have not been imposed on Plaintiffs, nor have Plaintiffs even alleged that were the regulations to be imposed, Plaintiffs would be liable for the costs of Jonarlen's care. Moreover, Plaintiffs do not allege that, in the event that the regulations were imposed on them and they were found liable, that such a finding would violate some statutory, common law or constitutional right.

The regulatory cost-sharing scheme involves a complex financial formula that determines the liability of DDD clients and/or their families based upon, among other things, the client's income, the client's assets, whether the client lives in North or South Jersey, the Consumer Prices Index, the number of dependents in the family, whether any family members are in college and whether that college is a state or private school, the amount, if any, of alimony payments made or received by a custodial parent, etc. See 30 N.J.R. 3279-3284. Plaintiffs do not even allege that the Hallens would be subject to the regulations, much less allege that they would be liable for costs if this formula were applied to them.

Moreover, even if Plaintiffs were liable for a portion of Jonarlen's care provided by DDD, Plaintiffs have not alleged what portion of that cost is attributable to reimbursement to the state for educational costs. For example, if the DDD incurred $100 in educational costs for Jonarlen and $100 in costs associated with his residential care, and the Plaintiffs were assessed $100 for his care after testing their financial condition in the complex formula described above, a court would have to determine whether that assessment violates his right to a free and appropriate education. Separating out educational from residential assessed costs would seem a precarious task even when using actual dollar figures after an assessment had been made. Here, we do not have real dollar figures, we do not know when, if at all, an assessment will be made, we cannot even begin to speculate what portion of a hypothetical assessment would be attributable to educational costs, and we do not even have an allegation in the proposed second amended complaint that such an assessment is contrary to any particular law. Yet Plaintiffs ask the court, in effect, to declare the cost-sharing regulation invalid on its face based upon speculation as to its application here and blind assumptions as to its future effect on Plaintiffs.

The inherent problems with Plaintiffs' argument appear to be exactly what Justice Scalia had in mind when he wrote: "the operation of a statute is better grasped when viewed in light of a particular application." Texas, 118 S. Ct. at 1260. Abstract application of a regulation to a hypothetical set of facts is not the proper function of a federal court empowered with constitutionally limited jurisdiction. See id. (quoting Longshoremen v. Boyd, 347 U.S. 222, 224 (1954)). The Court finds that it cannot engage in the hypothetical exercise Plaintiffs would have it perform in order to allow Plaintiffs to challenge the DDD cost-sharing regulation here. Plaintiffs' claim is not ripe for consideration.

"Ripeness requires [the Court] to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Texas, 118 S. Ct. at 1260. Here Plaintiffs are not likely to suffer hardship if the legality of the DDD cost sharing regulation is not tested here. If the DDD cost sharing regulation is imposed against Jonarlen, and Jonarlen or his parents are found liable for a portion of the costs of his care, and that liability is attributable to DDD imposing costs for Jonarlen's statutorily guaranteed right to a free and appropriate education, then Plaintiffs have the right to bring a separate action against the DDD to challenge its cost sharing regulation. Unless and until all of those eventualities occur, this Court will decline to entertain Plaintiffs' challenge based upon hypothetical harm they may suffer.

Plaintiffs, relying on Seattle School District No. 1 v. State of Washington, 633 F.2d 1338, 1342, n.1 (9th Cir. 1980), aff'd, 458 U.S. 457 (1982), argue that "the lack of enforcement of DDD's regulation as against Plaintiffs does not rob them of standing." In that case, a school district challenged the constitutionality of an anti- desegregation voter initiative that prohibited local school boards from integrating schools through busing to other districts. Seattle School District No 1, 633 F.2d at 1341. In a footnote, the court noted that the school board had standing to challenge the recently enacted initiative even though it had not yet been enforced. Plaintiffs list the four factors the court relied upon in finding that the claim in that case was justiciable. Those factors are not applicable here. In that case, the plaintiff school board was challenging a law that placed an affirmative duty on it to re-segregate its schools to the extent that it had accomplished desegregation through busing, and to refrain from implementing any desegregation plans in the future. See id. at 1341-42. The court held that plaintiff had standing because the challenged law affirmatively required the school board to take arguably unconstitutional actions. See id. at 1341, n. 1 (citing Lake Carriers Ass'n v. MacMullan, 406 U.S. 498, 507 (1972)). In this case, the DDD regulation does not require the Hallens to take any action whatsoever; the regulation requires DDD to take the action. The footnote Plaintiffs rely upon would be more applicable here if it were DDD challenging some legislative pronouncement that required it to perform an arguably illegal act. The Court finds that the Ninth Circuit's decision in that case is unpersuasive as applied to the facts of this case.

The Court is not unsympathetic to Plaintiffs' position. Certainly from Plaintiffs' perspective it would be more desirable to have Jonarlen's rights and the state's obligations to him settled in one proceeding, particularly in light of the long, twisted road Plaintiffs have traveled in their efforts to receive the appropriate care for their son. However, this Court is a Court of constitutionally limited jurisdiction. The Court can only resolve actual cases or controversies before it, and is constrained by prudential considerations from testing the legality of a complex state law in a factual vacuum. Permitting Plaintiffs to join DDD in this action would be futile in light of these considerations. This claim is not ripe for consideration, and could not survive a motion to dismiss. Conclusion

Plaintiffs' motion to amend their complaint to add DDD as a party is denied because their proposed amendment would be futile. Plaintiffs' claims against DDD could not survive a motion to dismiss because Plaintiffs' do not have standing and its claims are not ripe for consideration. Plaintiffs' motion for leave to amend to reflect Jonarlen's parents' status as his legal guardian is GRANTED.

ORDER

THIS MATTER having been brought upon motion before the Court by Ira M. Fingles, Esquire, attorney for Plaintiffs Jonarlen, John and Wendy Hallen, for leave to file a second amended complaint; and the Court having considered the moving papers; and the opposition thereto; and the Court having convened oral argument; and for the reasons discussed in the accompanying opinion;

IT IS this 19th day of November, 1998 hereby

ORDERED that the Plaintiff's motion is GRANTED IN PART AND DENIED IN PART. Plaintiffs are granted leave to file a second amended complaint only to reflect the appointment of John and Wendy Hallen as Jonarlen Hallen's legal guardians.

ROBERT B. KUGLER United States Magistrate Judge

cc: Hon. Joseph H. Rodriguez


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