USCA1 Opinion
August 28, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2272
KEVIN W. MURPHY, ET AL.,
Plaintiffs, Appellants,
v.
TIMBERLANE REGIONAL SCHOOL DISTRICT,
Defendant, Appellee.
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ERRATA SHEET
Please make the following corrections in the opinion in the
above case released on August 19, 1992:
Page 3, line 10: delete the extra period after "U."
Page 4, line 2: insert a comma after "1981".
Page 4, line 4: insert a comma after "1982".
August 19, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2272
KEVIN W. MURPHY, ET AL.,
Plaintiffs, Appellants,
v.
TIMBERLANE REGIONAL SCHOOL DISTRICT,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
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Michael R. Chamberlain with whom Chamberlain and Connor were on
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brief for appellants.
Diane M. Gorrow with whom Gerald M. Zelin and Soule, Leslie,
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Zelin, Sayward and Loughman were on brief for appellee.
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* Of the Eleventh Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.
RONEY, Senior Circuit Judge: This case arises under the
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Individuals with Disabilities Education Act (Act), 20 U.S.C. 1400 et
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seq. Kevin W. Murphy, along with his parents and guardians, Janice
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and Kevin C. Murphy, are seeking compensatory education for a two-year
period during which Kevin received no special educational services.
Both the administrative hearing officer and the United States District
Court for the District of New Hampshire entered orders for defendant
Timberlane Regional School District, ruling by way of summary judgment
that the Murphys' compensatory education claim was barred by laches.
Since the parents' delay in filing suit was not unreasonable and
factual disputes remain concerning the school district's claim of
prejudice, we vacate and remand to the district court for further
proceedings.
The Act requires that to qualify for federal financial
assistance, participating states must adopt policies assuring all
students with disabilities the right to a "free appropriate public
education." 20 U.S.C. 1412(1). New Hampshire has adopted the
required policies and attempts to comply with the requirements of the
Act.
As defined by the Act, the term "free appropriate public
education" refers to the special education and related services that
must be provided in conformity with an individualized education
program (IEP). 20 U.S.C 1401(a)(20). An IEP is a statement of the
educational program which must be written for each child and designed
to meet each child's unique needs. 20 U.S.C 1401(a)(19). The IEP
is developed by a team including a qualified representative of the
local educational agency, the teacher, the parents or guardian, and,
where appropriate, the student. Id. In New Hampshire, this team is
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referred to as the Pupil Placement Team. The IEP must be reviewed at
least annually and revised when necessary. 20 U.S.C. 1414(a)(5).
An IEP is appropriate under the Act if it provides instruction and
support services which are reasonably calculated to confer educational
benefits to the student. Board of Education v. Rowley, 458 U.S. 176,
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203-07 (1982); Abrahamson v. Hershman, 701 F.2d 223, 226-27 (1st Cir.
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1983).
The Act further requires states to establish and maintain certain
procedures "to assure that children with disabilities and their
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parents or guardians are guaranteed procedural safeguards with respect
to the provision of free appropriate public education." 20 U.S.C.
1415(a). Parents who believe that a proposed IEP is inappropriate are
entitled to an impartial due process hearing. 20 U.S.C. 1415(b)(2).
Any party aggrieved by the decision of the administrative hearing
officer may appeal to either state or federal court. 20 U.S.C.
1415(e)(2).
Kevin W. Murphy was born on July 9, 1968. He is a disabled
individual who is entitled to special educational services under the
Act. Kevin's disabilities include spastic paraplegia, cortical
blindness (difficulty processing visual stimuli), tactile agnosia
(difficulty processing tactile input), and mild mental retardation.
In 1976, the Murphys moved to Plaistow, New Hampshire, which is
in the Timberlane Regional School District (Timberlane or the
district). In September 1981, Kevin was transferred from his previous
placement to a special program at Charlotte Avenue School, a public
elementary school in Nashua, New Hampshire. Although Kevin's parents
had originally agreed to this new placement, they soon became
concerned about the appropriateness of the placement, and expressed
their objections to Kevin's teacher and to Timberlane's special
education administrators. In December 1981, Kevin suffered a seizure
at home, and his parents decided not to return Kevin to school after
the winter break.
In January 1982, the school superintendent authorized the
director of special education to provide tutorial services to Kevin in
his home. A year later, the State Department of Education strongly
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recommended that the district provide Kevin with home-based
instruction. No such services were ever provided.
Mr. Murphy wrote letters to Timberlane in January and February
1982, notifying the school district of his decision to keep Kevin at
home, complaining that Kevin was being denied an education, and
threatening to bring an action against the district. Kevin remained
at home throughout 1982 and 1983.
Between January 1982 and January 1984, numerous IEP meetings were
held between Kevin's parents and district officials in an attempt to
develop an appropriate program for Kevin. Although the parties'
accounts of the facts differ on who was cooperative and who was
obstinate, it is clear that there were a number of disagreements over
the appropriateness of different proposed placements and evaluations.
The Murphys rejected a number of IEPs presented to them by the
district. In June 1982, Kevin attended school in a third grade
classroom for the last two weeks of the school year. The purpose of
this placement was to allow Timberlane an opportunity to evaluate
Kevin and assess his needs so that an appropriate IEP could be
developed for the following school year.
In November 1982, the district initiated truancy proceedings
against Kevin's parents because of Kevin's absence from school. These
proceedings were never completed. In January 1984, the Pupil
Placement Team finally agreed on a placement for Kevin in the Get Set
Program at Pinkerton High School. Although Kevin's May 1985 IEP
indicated that Kevin might complete the Get Set Program as early as
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June 1987, Kevin remained in the program through the end of 1988-89
school year.
In May 1988, Kevin's Pupil Placement Team met to develop an IEP
for the 1988-89 school year. Although Kevin would turn 21 in July
1989, there was evidence that the Team assumed that this was not the
final IEP to be developed for Kevin and that Kevin would be permitted
to continue his education until he completed the program at Pinkerton
High School. In November 1988, Mr. Murphy met with Timberlane's
Superintendent, Terrance Holmes, to discuss whether Timberlane would
provide schooling beyond Kevin's 21st birthday. Mr. Holmes agreed to
present Mr. Murphy's request to the School Board. On January 5, 1989,
the Superintendent recommended to the School Board that Kevin be
allowed to continue at Pinkerton High School beyond his 21st birthday.
The Board rejected the recommendation by a vote of six to three.
Kevin turned 21 on July 9, 1989. On July 24, 1989, George
Wright, Timberlane's local education agency representative and a
member of Kevin's IEP team, wrote to Kevin's parents enclosing an
Annual Statement of Placement discharging Kevin as a special education
student. In August 1989, the Murphys appealed the discharge and
requested an administrative hearing. The Murphys sought compensatory
education for Kevin beyond the statutorily required age of 21 because
of the district's failure to provide special education and related
services from January 1982 through January 1984.
On February 27, 1990, an administrative hearing officer denied
Timberlane's motion for summary judgment, rejecting the district's
laches argument and applying a six-year statute of limitations. Upon
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the district's motion for reconsideration, the hearing officer
reversed himself, and on April 23, 1990, found that laches barred the
Murphys' claim. The parents appealed to the United States District
Court for the District of New Hampshire. On August 26, 1991, that
court ruled that compensatory education is available under the Act,
but granted summary judgment for the district based on its laches
defense. The court denied the Murphys' motion to reconsider and
entered its judgment on October 31, 1991.
This circuit has not yet decided whether compensatory education
is a permissible form of relief under the Act. Other circuits which
have addressed the issue have allowed compensatory education, likening
this form of relief to the reimbursement we permitted in Town of
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Burlington v. Department of Education, 736 F.2d 773, (1st Cir. 1984),
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aff'd, 471 U.S. 359 (1985). Indeed, according to our research, every
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circuit which has addressed this issue since our decision in
Burlington was affirmed by the Supreme Court has found that
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compensatory education is available under the Act. See, e.g., Lester
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H. v. Gilhool, 916 F.2d 865 (3d Cir. 1990), cert. denied sub nom.
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Chester Upland Sch. Dist. v. Lester H., U.S. , 111 S. Ct. 1317
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(1991); Burr v. Ambach, 863 F.2d 1071 (2d Cir.), vacated and remanded
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sub nom. Sobol v. Burr, 492 U.S. 902, 109 S.Ct. 3209 (1988), reaff'd,
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888 F.2d 258 (2d Cir. 1989), cert. denied, 494 U.S. 1005 (1990);
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Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853 (11th Cir. 1988);
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Miener v. State of Missouri, 800 F.2d 749 (8th Cir. 1986).
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Assuming that compensatory education is available in this
circuit, it, like reimbursement, is a form of equitable relief. See
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Burlington, 736 F.2d at 799, 801-02; Jefferson County Bd. of Educ.,
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853 F.2d at 857-58. Thus equitable defenses are available to a claim
for compensatory education.
The equitable doctrine of laches is an affirmative defense that
serves as a bar to a claim for equitable relief "where a party's delay
in bringing suit was (1) unreasonable, and (2) resulted in prejudice
to the opposing party." K-Mart Corp. v. Oriental Plaza, Inc., 875
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F.2d 907, 911 (1st Cir. 1989). See Gutierrez v. Waterman Steamship
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Corp., 373 U.S. 206, 215, reh'g. denied, 374 U.S. 858 (1963).
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We reverse the district court's grant of summary judgment on the
ground that the claimed is barred by laches for two reasons. First,
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the Murphys' delay in filing their claim was not so unreasonable as to
make the laches defense available without a clear showing of
prejudice. Second, summary judgment was improper because genuine
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issues of material fact remained concerning Timberlane's assertion of
prejudice.
We review the district court's application of laches for abuse of
discretion. K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911
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(1st Cir. 1989). The discretion of the district court, however, is
confined by established standards. We have been unable to find any
cases applying the laches doctrine to a claim brought under the Act,
indicating that perhaps the doctrine should be applied sparingly to
facilitate Congress' policy concerning the education of children with
disabilities. Cf. Park County Resource Council, Inc. v. United States
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Dept. of Agric., 817 F.2d 609, 617 (10th Cir. 1987).
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The district court found that the Murphys' delay in filing their
claim for compensatory education was unreasonable because the parents
kept Kevin out of school for two years; failed to cooperate with the
school in 1982 and 1983; and waited approximately six years before
seeking relief. Murphy v. Timberlane Regional Sch. Dist., No. 90-265-
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D at 20-21 (D.N.H. Aug. 26, 1991).
Although the Murphys could have requested a due process hearing
in late 1981 when they first felt that the education being provided by
Timberlane was inappropriate, they chose instead to negotiate with the
school in an attempt to secure an appropriate program for Kevin. The
Murphys attended no less than six meetings between January and
September 1982. Further, although the Pupil Placement Team had not
yet agreed on a program for Kevin, the Murphys agreed to allow Kevin
to attend school for a short period in June 1982 for the purpose of
evaluating Kevin and determining his needs. Obviously, the Murphys
were not sitting on their rights, but were attempting to resolve their
differences with the school district without resorting to litigation.
Second, the Murphys' delay was not unreasonable because until the
summer of 1989, the Murphys were not certain that the school district
would end Kevin's education when he reached 21. Although the Act only
requires school districts to provide free appropriate public education
to students between the ages of 3 and 21, it was not entirely
unreasonable for the Murphys to postpone litigation with the hope that
Timberlane would voluntarily provide additional education to
compensate for Kevin's two years at home.
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Third, we are troubled by Timberlane's attempt to fault the
Murphys for their failure to file for a due process hearing when,
although the parents are entitled to request a hearing if they
disagree with an IEP, state regulations impose upon Timberlane not
only the right, but the obligation to do the same. In New Hampshire,
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if the parents disagree with a proposed IEP and the local educational
agency feels it would be in the best interest of the child to
implement the IEP, the local agency is required to initiate
administrative procedures to obtain permission from a hearing officer
to implement the IEP. N.H. Code Admin. R. Ed. 1125.01(b)(3)-b.1 No
such procedures were ever initiated by Timberlane.
Finally, in what appears to be an attempt to persuade the court
that the Murphys' delay in filing their claim was unreasonable,
Timberlane has set forth in detail what it describes as the Murphys'
obstructionism and obstinacy. While obstinacy on the part of the
parents may be relevant to entitlement to relief and when fashioning
the remedy, it has little to do with the doctrine of laches.
Even if the Murphys' delay had been unreasonable, however, the
laches issue should not have been resolved on summary judgment. In
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1 If the parent(s) inform the district of their disagreement,
or if they failed to make a decision within a specified time
frame, it shall be interpreted as disagreement with the
decision or action proposed by the local school district's
Special Education Evaluation/Placement Team. If the Local
Education Agency feels its action or decision should, in the
best interests of the student, be implemented, the Local
Education Agency shall initiate its right of due process as
specified in the Complaint and Impartial Due Process Hearing
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Procedures Section of the Standards to obtain the authority
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to implement its decision.
N.H. Code Admin. R. Ed. 1125.01(b)(3)-b.
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reviewing the district court's grant of summary judgment, we should
reverse "if we find that 'issues of fact which were adequately raised
before the district court need to be resolved before the legal issues
in the case may be decided.'" Lipsett v. University of Puerto Rico,
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864 F.2d 881, 895 (1st Cir. 1988) (quoting Greenburg v. Puerto Rico
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Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir. 1987)).
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The district court's conclusion that the Murphys' delay in filing
their claim prejudiced Timberlane was based on the following: because
Kevin is now over 21 years of age, the state will not reimburse
Timberlane for the costs associated with compensatory education;
memories of witnesses from the 1981-83 period have faded; most of the
principal actors from the 1981-83 period have left the jurisdiction of
Timberlane; and in light of the posture of this case, no stay-put
provision was in place, and Kevin has been out of any publicly funded
educational system since 1989.
The circumstances cited by the district court do not provide a
showing of prejudice sufficient to support summary judgment on the
basis of laches. The laches doctrine may be invoked only where the
prejudice to the defendant flows from the plaintiff's delay. See
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Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 215-16, reh'g
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denied, 374 U.S. 858 (1963); Puerto Rican-American Ins. Co. v.
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Benjamin Shipping Co., 829 F.2d 281, 284 (1st Cir. 1987); Cruz v.
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Hauck, 762 F.2d 1230, 1238 (5th Cir. 1985). Two of the factors relied
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on by the district court have nothing to do with the Murphys' delay in
filing their claim. Although it may be true that the state would not
contribute to Timberlane's expenditures on compensatory education,
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that hardship is not attributable to the parents' delay. If the
Murphys had sought and received a compensatory education award in
1984, Timberlane would still be required to bear the cost without
assistance from the state. Similarly, any prejudice to Timberlane
that might result from the fact that Kevin has been out of school
throughout the course of these proceedings is not attributable to the
parents' delay.
The two remaining factors upon which the district court relied
also do not support a grant of summary judgment. First, there was no
evidence before the district court that the memories of witnesses had
failed. Second, the district court's finding that key witnesses were
unavailable was premature. Timberlane measures unavailability by
reference to the subpoena power of the administrative agency.
Although it may be true that the hearing officer could not have
compelled the attendance of some of these witnesses, the subpoena
power of federal courts is not as limited. See Fed. R. Civ. P. 45(b).
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There was no showing that the presence of these witnesses could not
have been compelled by the district court or that the key witnesses
are actually unavailable even if they are beyond the court's subpoena
power. Although Timberlane identified four principal actors which it
claimed were unavailable, the Murphys point to evidence in the record
calling into doubt the school's assertion of unavailability. In light
of these unresolved issues of fact, the district court's grant of
summary judgment to Timberlane must be set aside. See Lipsett v.
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University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).
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Vacated and Remanded.
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