The opinion of the court was delivered by: Chesler, District Judge
This matter comes before the Court upon the parties' motions for summary judgment [docket entries 20 & 21]. The Court has considered the papers submitted by the parties in connection with the instant motions, and pursuant to Federal Rule of Civil Procedure 78, rules without oral argument. For the reasons discussed below, the Court denies Plaintiff East Orange Board of Education's motion for summary judgment [docket entry 20] and grants in part and denies in part Defendant E.M.'s motion for summary judgment [docket entry 21].
E.M. is the parent of J.B., a minor child who is classified as a student eligible for special education and related services under the category of Specific Learning Disability. In May 2007, the Greater Newark Charter School ("GNCS") determined that it could not provide an appropriate education for J.B., then a resident of Newark, as required under his Individualized Education Program ("IEP"). GNCS developed an IEP for out of district placement and the Newark School District accepted financial responsibility. J.B. attended North Hudson Academy, a private school for students with learning disabilities located in North Bergen, New Jersey. At no point did the Newark School District contest the placement of J.B. In August 2007, E.M. and J.B. moved from the City of Newark to the City of East Orange. The East Orange Board of Education offered E.M. various in-district programs, which E.M. refused, instead requesting transportation from East Orange to North Hudson Academy.
On October 18, 2007, E.M. filed a Petition for Due Process which sought to have the East Orange Board Of Education cover expenses associated with J.B.'s placement at North Hudson Academy. The matter was transmitted to the Office of Administrative Law. On June 26, 2008, the Honorable Leslie Z. Celentano, Administrative Law Judge ("ALJ"), issued a Final Decision, which held, in part, that J.B. was not enrolled in the East Orange School District for the 2007-2008 school year and that J.B.'s placement at North Hudson Academy was appropriate and consistent with the IDEA. (Li Cert. Ex. D.) The ALJ's decision, relying largely on Garfield Bd. of Educ. v. T.C. and D.C. & Bergen Arts & Sci. Charter Sch., EDS 3508-08, Final Decision (May 7, 2008), concluded that "East Orange has no authority to prevent J.B. from enrolling and/or remaining in the GNCS, and therefore can not be afforded any relief in an IDEA due process hearing . . . and this tribunal is not the proper forum to challenge J.B.'s placement and/or costs."
On July 3, 2008, counsel for E.M. wrote counsel for the Board seeking reimbursement from the Board of all expenses incurred by E.M. for transportation during the 2007-08 school year and requesting that the Board bear any such expenses for the 2008-09 school year. Counsel for the Board responded that the ALJ's decision did not speak to the financial or transportation responsibilities of the Board and, consequently, no such relief would be provided. Subsequently, E.M. requested that the ALJ provide clarification as to whether the Board "is financially responsible for J.B.'s placement in and transportation to North Hudson Academy." (Li Cert. Ex. G.) No response has been provided by the ALJ. On September 24, 2008, the Board initiated the instant matter, seeking an appeal of Judge Celentano's decision. On March 12, 2009, E.M. filed its answer and counter-claims.
This matter was also the subject of a related administrative proceeding filed by E.M. in the Office of Administrative Law. Because E,M. and J.B. had subsequently moved to North Carolina, E.M. was ultimately directed by the Honorable Imre Karaszegi to submit a brief as to why the Petition should not be dismissed for mootness. On July 30, 2010 Judge Karaszegi, although holding that the issues properly before him were moot, stated that "[i]f petitioner's claim is, that by not providing transportation to J.B. to NHA, the East Orange Board of Education "failed in its duty" to provide a Free and Appropriate Public Education (FAPE), a due process hearing within the framework of the Individuals with Disabilities Education Act (IDEA) would be the principal vehicle for resolving [such a dispute]." E.M. o/b/o J.B. v. East Orange Bd. of Educ., et al., OAL Docket No. EDU 11588-08 (July 30, 2010). As will be discussed, the parties, however, did properly bring this issue before ALJ Celentano. As essentially an appeal of ALJ Celentano's Opinion, the issue of transportation expenses is properly before this Court.
The Board claims that all counter-claims asserted against it should be dismissed as the controversy is now moot since, as of April 7, 2009, E.M. and J.B. are residents of North Carolina and there is no indication that E.M. bore expenses due to the Board's actions. (Li Cert. Ex. P.) In response, Defendant/Counterclaimant, E.M. asserts that the Board should bear the costs of J.B.'s placement and transportation services and that the ALJ decision should be upheld in its entirety.
The Board argues that all controversies in this case have long been moot and, therefore, all counter-claims should be dismissed. It is well settled that Article III of the Constitution requires that any cause of action before a federal court must involve a live case or controversy. DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). As E.M. and J.B. are now residents of North Carolina, the Board argues that the case has become moot. Mootness occurs "when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). The Board argues that as J.B. was never dismissed from North Hudson Academy, nor does he continue to face any threat of dismissal (given that he voluntarily left the state), the issue of dismissal is moot. The Court agrees that the issue of dismissal is now moot.
The Court, however, must determine if any justiciable controversy still remains. The Board argues that Defendants have not demonstrated that any of the tuition was paid by Defendants, thereby rendering moot the issue of any tuition reimbursement. Defendants concede that E.M. did not pay any portion of the tuition. The issue of transportation reimbursement, however, presents a live and justiciable controversy. The mere fact of transfer does not extinguish this claim.*fn1 Hiller v. Bd. Of Educ. Of Brunswick Cent. Sch. Dist., 687 F. Supp 735, 739 (N.D.N.Y 1988) (plaintiff not precluded from seeking reimbursement "simply because the [parents] moved [the student] from the district); S.N. v. Old Bridge Twp. Bd. Of Educ., No. 04-517 2006 WL 3333138, at *1 (D.N.J. 2006) (a student's transfer to another district does not necessarily preclude "declaratory and injunctive relief and compensatory and punitive damages.") According to Defendant, she directly paid for various transportation expenses. From September 2007 until April 2009, ...