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J.A. v. Monroe Township Board of Education

United States District Court, D. New Jersey

April 19, 2019

J.A., individually and on behalf of J.A., a minor child, and on behalf of all others similarly situated, Plaintiffs,
v.
MONROE TOWNSHIP BOARD OF EDUCATION, NEW JERSEY DEPARTMENT OF EDUCATION, LAMONT REPOLLET Acting Commissioner of Education, NEW JERSEY OFFICE OF ADMINISTRATIVE LAW, JEFFREY R WILSON Administrative Law Judge, Defendants.

          ROBERT CRAIG THURSTON THURSTON LAW OFFICES LLC On behalf of Plaintiffs

          WILLIAM S. DONIO COOPER LEVENSON, P.A. On behalf of Defendant Monroe Township Board of Education

          CAROLINE GENETT JONES LAUREN AMY JENSEN On behalf of Defendants New Jersey Department of Education, Lamont Repollet, New Jersey Office Of Administrative Law, and Jeffrey R. Wilson

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         J.A. is 11-years old and disabled. The primary diagnosis is autism with other secondary diagnoses. She is eligible for special education and related services under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3)(A), and protection under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“§ 504”); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”); New Jersey's Special Education Law, N.J.S.A. 18A:46-1 et seq.; and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. (“NJLAD”). J.A. lives with her parents, J.A. and J.A., in Gloucester County, New Jersey.

         On May 3, 3016, an individualized education program (“IEP”) was implemented for her at Oak Knoll Elementary School in the Monroe Township Board of Education (“MTBOE”) school district. The IEP was amended on May 9, 2017 for the following year. J.A.'s parents were dissatisfied with how MTBOE handled the May 3, 2016 IEP, and they were further dissatisfied with the May 9, 2017 IEP. As a result, on May 24, 2017, the J.A. family filed a Request for Due Process Hearing with the New Jersey Department of Education (“NJDOE”) Office of Special Education Programs (“OSEP”). See J.A. and J.A. o/b/o J.A. v. Monroe Township BOE, OAL Docket No. EDS 08588-17.

         The IDEA guarantees that every child with a disability receive a free appropriate public education (“FAPE”) from her public school if that school receives federal funding. 20 U.S.C. § 1412(a)(1)(A); 34 CFR § 300.101(a). One of the IDEA's procedural safeguards guaranteed to children with disabilities and their parents is “[a]n opportunity for any party to present a [due process] complaint with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. § 1415(b)(6).

         From the date of filing the due process complaint, the parties have thirty days within which to settle or otherwise resolve the dispute. 20 U.S.C. § 1415(f)(1)(B)(ii); 34 C.F.R. § 300.510(a)(1). This so-called “resolution period” totals 30 days, and if the case is not resolved, it proceeds to a hearing. 20 U.S.C. § 1415(f)(1)(B)(ii). The parties must exchange and disclose documents they intend to introduce at the hearing “not less than 5 business days prior to a hearing” (“5-day exchange rule”). 20 U.S.C. § 1415(f)(2)(A); 34 C.F.R. § 300.512(b)(1). Thereafter, if no adjournments are sought and granted, a final decision must be rendered within 45 days after the end of the 30-day resolution period (“45 Day Rule”). 34 C.F.R. § 300.515(a). The New Jersey DOE OSEP provides an essentially identical procedure. See N.J.A.C. 6A:14, et seq.

         Violations of these procedural safeguards constitute a denial of FAPE if they have: (1) impeded the child's right to a FAPE; (2) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or (3) caused a deprivation of educational benefits. G.N. v. Board of Educ. of Tp. of Livingston, 309 Fed.Appx. 542, 546 (3d Cir. 2009) (citing Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007) (citing 20 U.S.C. § 1415(f)(3)(E)(i) & (ii))).

         Plaintiffs claim that the state Defendants have violated the 45 Day Rule in their individual situation because as of the date they filed their complaint in this Court - May 23, 2018 -their administrative case was still pending, and they would not have another hearing before the ALJ until June 11, 2018, which was 383 days from the end of the resolution period and well beyond the 45 Day Rule. In addition, or as an adjunct, to their individual case, Plaintiffs have advanced a putative class action pursuant to Federal Civil Procedure Rule 23 for alleged systemic due process violations arising from the way New Jersey adjudicates FAPE disputes between families and local schools. More specifically, the class claims are asserted “on behalf of themselves and all persons who filed Requests for Due Process Hearings (‘DP Complaints') for violations of special education laws with the NJDOE during the period January 1, 2011 through March 23, 2018 and who, after the case was transferred to the OAL, did not receive a decision within 45 days.” Plaintiffs also advance class action claims against the state Defendants alleging that NJDOE's use of the OAL as the adjudicative body to resolve special education disputes is systemically flawed because assigned ALJs lack training, knowledge, and jurisdiction. (Counts One through Four.)

         Plaintiffs' individual claims focus on the May 2017 Due Process Complaint, claiming that J.A. has been denied a FAPE in violation of the IDEA, Rehabilitation Act, ADA, and NJLAD. They seek judicial review of the ALJ's denial of their Motion to Amend their Request for a Due Process Hearing, Motion for Independent Educational Evaluations (“IEEs”), and Motion to Strike.[1] (Counts Five through Eleven.)

         When Plaintiffs filed their complaint here, their Due Process Complaint before the OAL was still pending. On October 10, 2018, Plaintiffs filed a second action in this Court, Civil Action 18-14838, regarding a subsequent decision by the ALJ regarding their May 2017 Due Process Complaint and another consolidated Due Process Complaint. See J.A. and J.A. o/b/o J.A. v. Monroe Township BOE, OAL Docket Nos. EDS 08588-17 and EDS 11524-18. In the second case, Plaintiffs appeal the ALJ's October 2, 2018 Order denying their Motion to Preclude Evidence based on MTBOE's alleged violation of the “5 Day Exchange Rule” in contravention of the IDEA and the NJAC.[2]

         Currently pending before the Court are Defendants' motions to dismiss Plaintiffs' complaint. Defendants argue, among other points, that because of the ongoing nature of Plaintiffs' Due Process Complaint in the administrative forum, Plaintiffs' claims should be dismissed for failure to exhaust administrative remedies. Also pending is Plaintiffs' motion to file an amended complaint in order to add additional named plaintiffs as class representatives.

         Plaintiffs have asserted two different cases in one - a putative class action against the state Defendants for alleged systemic problems with compliance with the 45 Day Rule and a challenge to hearing officer qualifications, coupled and intertwined with an individual appeal of J.A.'s personal due process complaints regarding her claim against MTBOE that she has been denied FAPE. In the view of this Court, the two cannot proceed together.

         With regard to Plaintiffs' individual claims, Plaintiffs' continuation of the May 2017 Due Process Complaint after filing suit here, as well as the filing of a second Due Process Complaint and proceeding with a consolidated Due Process Complaint before the OAL, warrants the dismissal of Plaintiffs' individual claims. Those claims, which necessarily turn on the individual and unique circumstances of J.A.'s due process complaints, are plainly unexhausted and must be dismissed. In contrast, Plaintiffs' claims of systematic failure fall within a clear exception to the exhaustion requirement and will be allowed to proceed in this Court under the parameters discussed below.

         Generally, “‘a plaintiff who seeks relief available under the IDEA must exhaust his administrative remedies before filing a lawsuit.'” M.M. v. Paterson Board of Education, 736 Fed.Appx. 317, 319-20 (3d Cir. 2018) (quoting Honig v. Doe, 484 U.S. 305, 327 (1988); Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 131 (3d Cir. 2017); D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014); 20 U.S.C. § 1415(i)(2)(A)). “There are four exceptions to the exhaustion requirement: (1) exhaustion would be futile or inadequate; (2) the issue presented is purely a legal question; (3) the administrative agency cannot grant relief; and (4) exhaustion would cause severe or irreparable harm.” Id. “The party seeking to be excused from exhaustion bears the burden of establishing an exception.” Id.

         Administrative exhaustion under the IDEA is required even for non-IDEA claims, such as ADA and Section 504 claims, “where the plaintiff seeks relief that can be obtained under the IDEA.” Batchelor v. Rose Tree Media School Dist., 759 F.3d 266, 272 (3d Cir. 2014). “This provision bars plaintiffs from circumventing [the] IDEA's exhaustion requirement by taking claims that could have been brought under IDEA and repackaging them as claims under some other statute - e.g., section 1983, section 504 of the Rehabilitation Act, or the ADA.” Id. Absent the application of any exceptions, all of a plaintiff's claims made pursuant to the IDEA require exhaustion, as do any claims asserted under Section 504 and the ADA, if they seek relief that is available under the IDEA. Id.

         1. Plaintiffs' individual claims

         Plaintiffs argue that exhaustion is not required because several of their counts (five through seven) are based on the ALJ's denial of their motions, and the decisions on those issues by the ALJ have reached their final resolution in the administrative process, thus causing them to be ripe for appeal. Those counts concern the ALJ's May 1, 2018 decision denying Plaintiffs' motion to amend the due process complaint, motion for IEEs, and motion to strike MTBOE's improper references to prior due process proceedings.

         The Court does not find Plaintiffs' argument persuasive. First, Plaintiffs' dissatisfaction with how the ALJ has ruled on their various motions cannot give rise to piecemeal appeals over evidentiary and similar issues during the administrative hearing process such that Plaintiffs are excused from proceeding through the administrative process to finality. Accepting Plaintiffs' arguments on this score would render exhaustion a nullity. See D.C. v. Freehold Regional High School Board of Education, 2018 WL 6649745, at *3 (D.N.J. Dec. 18, 2018) (“[T]he futility exception only applies where a plaintiff is unable to obtain his or her requested relief due to some administrative defect; the futility exception is not meant to apply to a plaintiff who merely disagrees with the ALJ's decision.”); L.V. ex rel. G.V. v. Montgomery Twp. Sch. Dist. Bd. of Educ., 2013 WL 2455967, at *4 (D.N.J. 2013) (“Mere disagreement with the outcome of an ALJ's interim decisions in the administrative hearing process is insufficient to satisfy the futility exception.”); H.A. v. Teaneck Bd. Of Educ., 2010 WL 891830, at *5 (D.N.J. 2010) (“Piecemeal appeal of issues in a single case to a federal court is most often inefficient and ineffective.”).

         Second, the futility exception does not apply where, as here: a) Plaintiffs have not previously utilized the IDEA administrative process on this particular due process claim, b) the factual record is not fully developed and evidentiary issues are not resolved, c) damages is not the only remaining issue and d) and the IDEA administrative process is in fact able to provide a suitable remedy for the primary harm alleged - J.A.'s denial of FAPE by MTBOE. Batchelor, 759 F.3d at 281.

         “Exhaustion serves the purpose of developing the record for review on appeal, encouraging parents and the local school district to work together to formulate an IEP for a child's education, and allowing the education agencies to apply their expertise and correct their own errors.” Batchelor, 759 F.3d at 275 (citations omitted). “The advantages of awaiting completion of the administrative hearings are particularly weighty in Disabilities Education Act cases. That process offers an opportunity for state and local agencies to exercise discretion and expertise in fields in which they have substantial experience. These proceedings thus carry out congressional intent and provide a means to develop a complete factual record. The administrative hearings generally will produce facts and opinions relevant to the very same issues presented to the court by plaintiffs.” Id. (citations omitted).

         The purpose of the exhaustion requirement is directly relevant here. Plaintiffs may have advanced some claims that relate to the allegedly flawed administrative process, discussed in the next section, but Plaintiffs' ultimate concern as it pertains to J.A. is whether MTBOE has provided or will provide J.A. with FAPE - i.e., “an educational program reasonably calculated to enable [J.A.] to make progress appropriate in light of [J.A.'s] circumstances.” E.P. v. North Arlington Board of Education, 2019 WL 1423782, at *2 (D.N.J. 2019) (quoting Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1001 (2017)) (other citation omitted). The substantive issues related to J.A.'s FAPE ...


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