Murphy v. Timberlane Regional School District

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 93-1828

                  KEVIN W. MURPHY, ETC., ET AL.

                      Plaintiffs, Appellees,

                                v.

               TIMBERLANE REGIONAL SCHOOL DISTRICT,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Shane Devine, Senior U.S. District Judge]
                                                       

                                           

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                     and Cyr, Circuit Judge.
                                           

                                           

   Gerald M. Zelin,  with whom  Diane M. Gorrow  and Soule,  Leslie,
                                                                    
Zelin, Sayward and Loughman were on brief for appellant.
                         
   Ellen  J.   Shemitz,  with   whom  Michael  R.   Chamberlain  and
                                                               
Chamberlain and Connor were on brief for appellees.
                    

                                           

                          April 28, 1994

                                           

          CYR,  Circuit  Judge.    Plaintiffs-appellees  Kevin W.
          CYR,  Circuit  Judge.
                              

Murphy  (Kevin) and  his  parents, Janice  and  Kevin C.  Murphy,

brought  this  action  under  the  Individuals with  Disabilities

Education  Act  (IDEA),  20  U.S.C.   1400  et  seq.,1  to compel
                                                    

defendant-appellant Timberlane Regional School  District (Timber-

lane)  to  provide  Kevin  with compensatory  education  for  the

two-year period during which  he received no educational services

due to the  failure of the  parties to agree upon  an appropriate

individual educational plan (IEP).  The district court ultimately

granted  summary  judgment  against  Timberlane,  and  Timberlane

appealed.  We affirm the district court judgment.

                                I

                            BACKGROUND
                                      

          After  incurring an  accident-induced disability  at an

early age, Kevin was determined a disabled individual entitled to

special  educational services  under  the IDEA.2   Several  years

                    

     1The  IDEA  formerly  was  known as  the  Education  of  the
Handicapped Act. See Pub.  L. 102-119,   25(b), Oct 7,  1991, 105
                    
Stat. 607 (substituting  "Individuals with Disabilities Education
Act" for "Education of the Handicapped Act").

     2We relate only the background necessary to an understanding
of this appeal.   For  greater detail, see  Murphy v.  Timberlane
                                                                 
Regional Sch. Dist., 973 F.2d 13, 14-15 (1st Cir. 1992) (vacating
                   
summary judgment against the Murphys) ("Murphy I").
                                                
     As the court explained in Murphy I:
                                       

          [The  IDEA]  requires  . . . participating  states
     [to]  adopt policies  assuring  all students  with dis-
     abilities  the  right  to a  "free  appropriate  public

                                2

later, the Murphy family moved to Plaistow, New Hampshire,  which

is within the Timberlane Regional  School District.  In September

1981, Timberlane placed Kevin in a special educational program at

Charlotte Avenue  School, a  public elementary school  in Nashua,

New  Hampshire.   Although Kevin's  parents originally  agreed to

this placement, they soon  expressed concerns to his teacher  and

to Timberlane's special education  administration that Kevin  was

regressing academically.  In  December 1981, after Kevin suffered

                    

     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  IDEA], the term  "free appro-
     priate public  education" refers to  the special educa-
     tion  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.
                                                            
     . . .  An  IEP is  appropriate under [the  IDEA] 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, 203-207  (1982); Abrahamson v.  Hershman, 701 F.2d
                                                  
     223, 226-27 (1st Cir. 1983).

          [The  IDEA] further  requires states  to establish
     and maintain certain procedures  "to assure that  chil-
     dren  with disabilities and  their 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  pro-
     posed 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).

Murphy I, 973 F.2d at 14.
        

                                3

a  seizure at  home, his  parents  decided not  to return  him to

school.   Kevin received no educational  services from Timberlane

between January  1982 and January  1984, the  two-year period  to

which  the compensatory  education claim  at issue  in  this case

relates.  Finally, in  January 1984, after a great  many meetings

and an  abortive truancy  proceeding against Kevin's  father, the

parties came to  an agreement on  Kevin's placement at  Pinkerton

High School, where he remained through the 1988-89 school year.3

          In the  fall of 1988,  Mr. Murphy and  Timberlane offi-

cials had discussions concerning continuation  of Kevin's special

education beyond his twenty-first birthday  on July 9, 1989.  Mr.

Murphy later  signed Kevin's  1988-89 IEP with  the understanding

that Kevin would be  provided special educational services beyond

age  twenty-one.   On  January 5, 1989,  however, the  Timberlane

school board rejected a  request by the Timberlane superintendent

to fund continued special education for Kevin.  On July 24, 1989,

shortly  after  Kevin's  twenty-first  birthday,  George  Wright,

Timberlane's representative  on  Kevin's IEP  team, notified  the

Murphys  that Kevin  would be discharged  as a  special education

student.

          Kevin is  now twenty-five years  of age  and no  longer

entitled to a free public education under New Hampshire law.  See
                                                                 

N.H. Rev. Stat. Ann.   186-C:9 (disabled "child shall be entitled

to  continue in an approved program until  such time as the child

                    

     3Although  briefly  placed  in  two  different  schools  for
evaluation, in June 1982 and October-November 1983, Kevin was not
returned to a permanent educational setting until January 1984.

                                4

has acquired a high school diploma or has attained the age of 21,

whichever occurs first");  see also id.   186-C:2  (similar).  In
                                       

August 1989, less than one month after Kevin had been discharged,

the  Murphys requested  an administrative  hearing.   The Murphys

maintained that  Kevin was entitled  to compensatory  educational

services beyond  age twenty-one as a  consequence of Timberlane's

failure to  provide special education during  the two-year period

from January 1982 through January 1984.  The Murphys specifically

alleged that Timberlane  had violated the IDEA  by failing either

to  propose an  IEP acceptable  to  all IEP  team  members or  to

initiate administrative proceedings to resolve the IEP impasse in

accordance with N.H. Code Admin. R. Ed. 1125.01(b)(3)-b ("section

1125").4

          The administrative hearing officer determined  that the

Murphys' claim  for compensatory educational services  was barred

by laches.  The United States  District Court for the District of

New Hampshire  granted summary  judgment in favor  of Timberlane,

affirming the  administrative decision.  We  vacated the district

                    

     4Section 1125 states: 

     If the parent(s) inform the district of their disagree-
     ment, or if  they fail  to make a  decision within  the
     specified time  frame, it shall be  interpreted as dis-
     agreement with  the decision or action  proposed by the
     local  school  district's  Special   Education  Evalua-
     tion/Placement  Team.  If  the  Local  Education Agency
                                                            
     feels its action or decision should, in the best inter-
                                        
     ests of  the student, be implemented,  the Local Educa-
                                                            
     tion Agency shall initiate its  right of due process as
                                                         
     specified  in the Complaint  and Impartial  Due Process
     Hearing Procedures  Section of the Standards  to obtain
     the  authority  to  implement  its  decision. (emphasis
     added).

                                5

court decision and remanded for further findings relating to  the

laches defense.   Murphy I,  973 F.2d  at 18.   On remand,  after
                          

receiving evidence  and argument on  both the laches  defense and

the  cross-motions  for  summary  judgment,  the  district  court

rejected  Timberlane's  laches  defense,  denied  its  motion for

summary judgment based on  a statute of limitations defense,  and

granted summary judgment for  the Murphys.  Murphy  v. Timberlane
                                                                 

Regional Sch.  Dist., 819  F. Supp. 1127  (D.N.H. 1993)  ("Murphy
                                                                 

II").  Timberlane appeals the district court order.
  

                                II

                            DISCUSSION
                                      

A.  Laches
          

          When Timberlane's laches defense was before us in 1992,

we  explained  that "[t]he  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) unreason-

able,  and (2)  resulted in  prejudice to  the  opposing party.'"

Murphy I, 973 F.2d at 16 (quoting K-Mart Corp. v. Oriental Plaza,
                                                                 

Inc., 875  F.2d 907, 911  (1st Cir. 1989)).   We went on  to hold
    

that "the  Murphys' delay in  filing their claim  was not so  un-

reasonable  as to  make the  laches  defense available  without a
                                                                 

clear showing of prejudice."   Id. (emphasis added).   On remand,
                                  

the  district court  found  that  the  delay had  not  prejudiced

Timberlane's  ability  to present  its case  as  a result  of the

unavailability  or failed memories of key  witnesses.  Murphy II,
                                                                

819 F. Supp. at 1133.  Our review reveals no  abuse of discretion

                                6

by the district court.  See K-Mart Corp., 875 F.2d at 911.5
                                        

          Timberlane represented to the district court that "most

of the primary actors" from the relevant period were unavailable,

and  that  the  "memories  of  critical  witnesses  had  failed."

However,  two of  these  "primary" witnesses  (Kevin's  teachers:

Martha Kadel and Claudia  Libis) testified at the district  court
                                          

hearing.  A third  key witness, Nikolas Sarbanis,  resides within

the  reach of the district court's subpoena power, yet Timberlane

did not produce  him.  Timberlane rested  its "prejudice" showing

relating  to  the  other  "primary"  witness,  former  Timberlane

Superintendent Robert Crompton, solely on its  unsupported asser-

tion that  he  was  unavailable.   The  district  court  received

testimony, however, that Crompton resides in Florida, and Timber-

lane  made no proffer  that he was either  unable or unwilling to

testify.   See Hoover v.  Department of Navy,  957 F.2d 861,  864
                                            

(Fed. Cir. 1992)  (noting that "prejudice"  showing must be  sup-

ported by  "substantial evidence" and holding,  on similar facts,

that this burden "is not  met simply by showing that  a potential

witness has retired"  outside the subpoena  power of the  court.)

Moreover, Timberlane did not assert,  let alone show, that Cromp-

ton's testimony would not be available by deposition.  See, e.g.,
                                                                

Fairfield  274-278 Clarendon Trust v.  Dwek, 970 F.2d 990, 994-95
                                           

                    

     5Because the district court conducted  a preliminary hearing
at which the parties  were allowed to present evidence,  see Fed.
                                                            
R.  Civ.  P.  12(d), "abuse  of  discretion"  is the  appropriate
standard of review, see Rivera-Gomez v. de Castro, 900 F.2d 1, 2-
                                                 
3  (1st  Cir.  1990),  notwithstanding that  the  laches  defense
originally was raised on motion for summary judgment.    

                                7

(1st Cir. 1992) (explaining  requirements for the introduction of

deposition testimony when witnesses  are unavailable, pursuant to

Fed. R. Civ. P. 32(a)(3)).

          The  district court further  found that  Timberlane had

failed to take reasonable steps to refresh its witnesses:

          At   the   [district  court]   hearing,  [six
          Timberlane  witnesses]   testified  on  . . .
          direct  examination  as to  aspects  of their
          involvement  with  Kevin's special  education
          program which  they could  not remember.   On
          . . . cross-examination   [by   the  Murphys'
          counsel],  however,  each  acknowledged  that
          [Timberlane]  had  not  shown  them  relevant
          documents  contained in  the  record  of  the
          instant case, such as transcripts of signifi-
          cant meetings concerning Kevin.

Murphy II, 819 F. Supp. at 1133.  
         

          After  reviewing the  entire  hearing  transcript  with

care, we are persuaded that  the rejection of Timberlane's  claim

of prejudice was well  within the district court's sound  discre-

tion.   See  K-Mart Corp., 875  F.2d at  912; see  also Kersey v.
                                                              

Dennison Mfg.  Co., 3 F.3d  482, 486  (1st Cir.  1993) (abuse  of
                  

discretion occurs "'when a  relevant factor deserving of signifi-

cant weight is overlooked, or when an improper factor is accorded

significant weight,  or when the court  considers the appropriate

mix  of  factors, but  commits a  palpable  error of  judgment in

calibrating the  decisional scales.'") (quoting United  States v.
                                                              

Roberts, 978 F.2d 17, 21 (1st Cir. 1992)) (citations omitted).
       

B.   The Timberlane Motion for Summary Judgment
                                               

          Following  the   evidentiary  hearing  on   its  laches

defense, Timberlane moved for summary judgment on the ground that

                                8

the present action is time-barred.  Reasoning from the absence of

an  express limitation  provision in  both the  IDEA and  the im-

plementing New Hampshire statute, see N.H. Rev. Stat. Ann.   186-
                                     

C,6  the district court ruled  that laches alone  could provide a

temporal limitation on the Murphys' compensatory education claim.

Murphy II, 819 F. Supp. at  1132.  We conclude that the compensa-
         

tory education claim was not time-barred  under the New Hampshire

limitation provision  appropriate for "borrowing" in  the present

case.  See Garside v. Osco Drug,  Inc., 895 F.2d 46, 49 (1st Cir.
                                      

1990)  ("court of appeals [may] affirm a judgment on any indepen-

dently sufficient ground").

     (i) The "Borrowing" Methodology
                                    

          The Supreme Court has described the federal "borrowing"

praxis  in broad terms:   "[w]hen Congress has  not established a

time  limitation  for a  federal  cause  of action,  the  settled

practice has been to adopt a local time limitation as federal law

if  it is not inconsistent with federal  law or policy to do so."

Wilson  v. Garcia, 471 U.S.  261, 266-67 (1985)  (  1983 action).
                 

See  also Campbell v. Haverhill, 155 U.S. 610, 616 (1895) (absent
                               

federal limitation,  congressional intent  is best served  if the

federal  right is "enforced in the manner common to like actions"

under state law); Rowlett v.  Anheuser-Busch, Inc., 832 F.2d 194,
                                                  

198 (1st Cir. 1987) (borrowing N.H. RSA   508:4 six-year  limita-

                    

     6New  Hampshire  has  since  adopted  a  limitations  scheme
specifically applicable  to special  education claims.   See N.H.
                                                            
Rev. Stat. Ann.   186-C:16-b (effective June 30, 1992).

                                9

tion on "personal actions" for application to   1981 action).  In

selecting  the appropriate  state  limitation,  Campbell and  its
                                                        

progeny require the borrowing court to balance both the interests

of the  parties  and  the legislative  goals  of  the  particular

federal statute.  See Amann v. Town of Stow, 991 F.2d 929, 931-33
                                           

(1st  Cir.  1993)  (borrowing  administrative  review  limitation

period  after balancing  three  IDEA policy  goals: the  parental

interest  in  participation,  the  school's  interest  in  speedy

resolution  of disputes,  and the  child's interest  in receiving

educational  entitlement).    Similarly,  the Sixth  Circuit  has

observed that:

          [T]he nature  of actions that  can be brought
          under the [IDEA] as well as the Act's goal of
          proper  education  of  the handicapped  child
          make  the  selection  of   state  limitations
          periods   on   a   case-by-case    basis   an
          imperative.   The  individual  case  must  be
          characterized by considering  the facts,  the
          circumstances,  the posture  of the  case and
          the legal theories presented.

Janzen v. Knox County Bd.  of Educ., 790 F.2d 484, 487  (6th Cir.
                                   

1986) (citation omitted); see  Bow Sch. Dist. v. Quentin  W., 750
                                                            

F. Supp. 546, 549  (D.N.H. 1990) (similar) (Stahl, J.);  see also
                                                                 

Tokarcik v.  Forest Hills Sch. Dist., 665  F.2d 443, 449 (3d Cir.
                                    

1981) ("Ultimately, we must be guided by the aim of the [IDEA] in

devising the limitation period  in issue here.  If  state limita-

tions law  conflicts with federal procedural  safeguards embodied

in  [the  IDEA], the  federal  concerns  are paramount."),  cert.
                                                                 

denied, 458 U.S. 1121 (1982).
      

     (ii) The Compensatory Education Claim
                                          

                                10

          First, we must attempt  to "characterize the essence of

the claim in  the pending  case, and decide  which state  statute

provides the most  appropriate limiting  principle." Wilson,  471
                                                           

U.S. at 268.   The present IDEA claim seeks  to vindicate Kevin's

"right to a free appropriate public education," 20 U.S.C.   1412-

(1);  see also  20 U.S.C.    1412(2)(b), based on  the contention
              

that Kevin was  deprived of  educational services  for two  years

while  Timberlane, contrary  to its  mandated duty  under section

1125,  failed  to  resort  to the  New  Hampshire  administrative

process to resolve the impasse between Timberlane and the Murphys

as to what constituted  an "appropriate education." See generally
                                                                 

Honig v. Doe,  484 U.S.  305, 310 (1988)  (finding IDEA  "confers
            

upon disabled children an enforceable substantive right to public

education").  The Murphys request equitable relief in the form of

an  injunction compelling  Timberlane to  provide Kevin  with two

years of compensatory special education.

          The  peculiar  procedural warp  presented in  this case

seems  to us  sufficiently  important to  qualify  as a  defining

feature  of the limitation to be borrowed from New Hampshire law.

The administrative  hearing  officer  initially  ruled  that  the

Murphys' hearing  application was timely under  the New Hampshire

statute of  limitations governing "personal actions"  in general,

see  N.H. Rev. Stat. Ann.   508:4, and therefore that the compen-
   

satory education claim should be addressed on the merits.  Later,

on reconsideration, the hearing  officer ruled that the compensa-

tory education claim was  barred by laches.  The  Murphys filed a

                                11

timely  appeal  to the  district  court  from the  administrative

ruling  on laches  pursuant to  20 U.S.C.    1415(e)(2), and  the

district  court upheld the administrative ruling.   On appeal, we

vacated the district  court decision and remanded to the district

court for further proceedings.  Murphy I, 973 F.2d at 18.
                                        

          The district court  convened an evidentiary  hearing on

laches,  and presumably in light of the circumstances of the case

    Kevin was  approaching his  mid-twenties  by this  point, the

litigation had been  pending for  more than three  years, and  an

extensive  district  court evidentiary  record  had  already been

generated     the district court  decided to adjudicate  the Mur-
                                                                 

phys'  compensatory education  claim  on the  merits rather  than
                                                    

remand  to the  administrative hearing  officer.   See  20 U.S.C.
                                                      

  1415(e)(2) (courts  sitting in review of administrative rulings

may supplement the hearing record with additional evidence); Pihl
                                                                 

v. Massachusetts Dept. of Educ., 9  F.3d 184, 191 (1st Cir. 1993)
                               

(remand  to administrative  hearing officer  may not  be required

where the record contains  sufficient factual development and the

"peculiar  expertise"  of a  hearing  officer  is not  required).

Neither party  opposed the  district court's decision  to address

the merits.   Thus, the  instant appeal  challenges the  district

court  order allowing  the  compensatory education  claim on  the

merits.

          This  tortuous  procedural  trail  is material  to  the

present  inquiry in at least two significant respects.  First, in

contradistinction to  the "typical"  IDEA action, this  case does

                                12

not concern the appropriate limitation to be applied to an appeal

from a  state administrative ruling  to a federal  district court

under  20 U.S.C.   1415(e)(2), but to the initiation of a request

for an  "impartial due  process" administrative hearing  under 20

U.S.C.   1415(b)(2) in the first instance.  Compare, e.g., Amann,
                                                                

991 F.2d  at 933-34  (importing 30-day limitation  from Massachu-

setts Administrative  Procedure Act  in   1415(e)(2) case);  Bow,
                                                                

750 F. Supp. at  550-51  (similar, applying 30-day  New Hampshire

administrative  review limitation).7    Second,  we believe  that

several factors which militate in favor of borrowing an  abbrevi-

ated  limitation period  for  application in  the  context of  an

appeal from an administrative ruling under section 1415(e)(2) are

inapposite in the present  context.  For instance, where  a party

seeks  administrative review in  order to resolve  an ongoing IEP
                                                             

impasse, the need for  a speedy resolution securing the  eligible
                               

child's IDEA entitlement  at the earliest  possible time must  be

considered  a dominant IDEA policy objective.  Amann, 991 F.2d at
                                                    

932.  The present action, on the other hand, concerns a claim for

compensatory education  based exclusively on a  course of conduct

already concluded, and thus does not implicate an equivalent need
                 

for urgent administrative intervention.  Furthermore, whereas the

limitation borrowed in this case will govern whether the Murphys'

                    

     7The thirty-day  limitation borrowed in Bow  appears to have
                                                
been supplanted by a  newly enacted limitation scheme, applicable
exclusively in the special education  context.  The new provision
prescribes  a  120-day limitation  on  any "appeal  from  a final
administrative  decision  in  a  special  education  due  process
hearing to a court  of competent jurisdiction."  N.H.  Rev. Stat.
Ann.   186-C:16-b IV.

                                13

compensatory  education  claim  can  ever be  considered  by  any
                                                                 

tribunal in the first instance,  in a section 1415(e)(2) proceed-
                              

ing  the  district court  normally  functions  something like  an

appellate court reviewing  a state agency decision on the merits.

Bow, 750 F.  Supp. at 549.  Consequently, the  statute of limita-
   

tions defense interposed by  Timberlane would not merely preclude

a judicial "second look" at an adverse administrative ruling, but

foreclose any ruling, administrative or judicial, on Timberlane's
                                                

legal  responsibility for  the  otherwise irretrievable  two-year

IDEA educational entitlement denied Kevin.

          Thus,  the broad equitable  considerations and finality

concerns generated  by  the  present  action     where  absent  a

compensatory  education award there can be no "next year" for the

disabled individual no longer  eligible for free public education

   are not ordinarily involved in an appeal to the district court

under  section 1415(e)(2).  Compare Amann, 991 F.2d at 933 (hold-
                                         

ing short limitation period  appropriate, in part because parents

can always contest next year's proceedings if need be).  We think
                              

these  considerations bear out the view endorsed by the Bow court
                                                           

that  "[n]othing  prevents  different  provisions  of  a  federal

statute  from being  characterized  differently  for  statute  of

limitation purposes."  Bow,  750 F. Supp. at 549,  citing Wilson,
                                                                

471  U.S. at 268.   Under  the required  "borrowing" methodology,

therefore, we weigh the  federal interests manifest in the  IDEA,

the state and school district interests implicit in section 1125,

and  the interests of the learning disabled pupil and his family,

                                14

all in  light of the particular procedural  posture and equitable

considerations disclosed in the present record.

     (iii)  The Appropriate New Hampshire Limitation
                                                    

          Timberlane advocates borrowing the four-year limitation

applicable  to "Actions  to  Recover For  Bodily Injury"  against

local governmental  units, including school districts.   See N.H.
                                                            

Rev. Stat. Ann.   507-B:7  ("RSA 507-B:7") (amended to three-year

period, effective  in actions  arising after  May 17, 1989).   An

alternate candidate  is the New Hampshire  statute of limitations

which  formerly  prescribed  a six-year  limitation  on "personal

actions"  accruing prior to July 1,  1986.  N.H.  Rev. Stat. Ann.

  508:4 ("RSA 508:4") (amended to three-year period, effective in

actions arising after  July 1, 1986).   As the  present cause  of

action accrued before RSA 508:4 and RSA 507-B:7 were amended, see
                                                                 

infra p. 21, the pre-amendment versions govern.  See Gonsalves v.
                                                              

Flynn,  981 F.2d 45, 47-48  (1st Cir. 1992)  (noting that federal
     

"borrowing" court  will respect  state law provision  prescribing

exclusively  prospective  application of  amendatory limitation),

citing  Kadar Corp. v.  Milbury, 549 F.2d 230,  234 n.3 (1st Cir.
                               

1977).

          We  think it clear that  RSA 507-B:7 does  not meet the

threshold  "like action"  test, see  Campbell, 155  U.S. at  616,
                                             

because it applies only in actions "to recover for bodily injury,

personal injury, or property damage caused by" fault attributable

to a governmental unit.  N.H. Rev. Stat. Ann.   507-B:2.  The New

Hampshire Supreme Court has observed:  "Taken as a whole, the law

                                15

[RSA 507:B]  seems designed to limit  municipal liability arising

from  tort suits  and related  personal property  claims . . . ."

Cannata  v. Deerfield, 566  A.2d 162, 167 (N.H.  1989).  The Mur-
                     

phys' compensatory education  claim, on the  other hand, is  pre-

mised  on  allegations  that  Timberlane  denied  Kevin's federal

statutory  rights by  withholding all special  education services

for a  two-year period in violation of the IDEA and section 1125,

the New Hampshire implementing regulation.8

          Moreover, certain extraordinary characteristics  of the

present compensatory education claim point up the appropriateness

of the New Hampshire catch-all limitation applicable to "personal

actions"  generally.  Prior to  its amendment in  1986, RSA 508:4

stated:    "Except as  otherwise  provided by  law,  all personal
                                                  

actions, except actions for slander or libel, may be brought only

within 6  years of the  time the cause  of action accrued."   Al-

though  we have found no precise definition of the term "personal

actions," the New Hampshire Supreme Court often has described RSA

508:4 as a "general statute  of limitations," see, e.g., Petition
                                                                 

of Keene Sentinel, 612 A.2d 911, 914 (N.H. 1992); Clark v. Exeter
                                                                 

Co-operative  Bank,  344 A.2d  5, 5  (N.H.  1975).   Further, the
                  

opening proviso     "[e]xcept as  otherwise provided  by law"    

                    

     8Even  if the  present claim  were somehow  considered tort-
based,  the required  "borrowing" methodology does  not encourage
recourse to state limitations tailored to curtail public liabili-
ty.   See, e.g., Wilson, 471  U.S. at 279 (noting,  in context of
                       
  1983 action, that "the  very ineffectiveness of state remedies"
may  have  motivated Congress  to  impose  a federal  enforcement
scheme  against  state actors);  cf.  Rowlett,  832  F.2d at  198
                                             
(borrowing N.H. RSA 508:4 for   1981 claim).

                                16

strongly suggests that RSA  508:4 is meant  to serve as a  "back-

stop"  limitation on  civil  actions not  governed  by some  more

particular  limitation.   Compare,  e.g.,  N.H.  Rev. Stat.  Ann.
                                        

  507-C:4 (providing two-year limitation on actions  for "medical

injury"); N.H.  Rev. Stat. Ann.    508:4-B (providing  eight-year

limitation on actions for "damages from construction").

          As an  IDEA-based claim  for compensatory education  is

similar to a civil rights action, the "borrowing" praxis also may

be informed  by relevant principles  developed in the  context of

civil  actions under  42 U.S.C.     1981 and  1983.   The Supreme

Court  has identified  a general  preference for  borrowing state

limitations governing  personal injury actions,  Wilson, 471 U.S.
                                                       

at  279 (  1983 action), in  part because "[i]t  is most unlikely

that  the period  of limitations  applicable to  [personal injury

actions] ever  was, or ever would  be, fixed in a  way that would

discriminate  against federal  claims,  or  be inconsistent  with
                                                                 

federal  law in any respect."   Id. (emphasis added).  Under this
                                   

criterion, as between RSA 507-B:7 and RSA 508:4    the statute of

limitations  governing personal  actions  generally     RSA 508:4

presents the more analogous New Hampshire statute under the "like

action"  test established in Campbell, 155 U.S. at 616, hence the
                                     

more appropriate for  application to the IDEA claim for compensa-

tory education in the present case.9  Cf. Lillios v. Justices  of
                                                                 

                    

     9See James v.  Nashua Sch.  Dist., 720 F.  Supp. 1053,  1058
                                      
(D.N.H. 1989).  The  James court borrowed RSA 508:4  for applica-
                          
tion to  a claim for  attorney fees  in an IDEA  action.   As the
Murphys seek to enforce a substantive federal right rather than a
derivative fee-shifting provision, however, the RSA 508:4 limita-

                                17

New Hampshire  Dist. Court,  735 F. Supp.  43, 48  & n.9  (D.N.H.
                          

1990) (RSA 508:4 provides limitation applicable to   1983 actions

brought in New Hampshire).10

          We  next consider whether  borrowing RSA 508:4 comports

with the  purposes  underlying the  IDEA  and the  New  Hampshire

implementing regulation.  See  Wilson, 471 U.S. 266-67; Bow,  750
                                                           

F. Supp. at  551.  The central purpose  of the IDEA is  to secure

special educational entitlements to  eligible recipients.  See 20
                                                              

U.S.C.   1400(b)(9)  ("it is  in the  national interest  that the

Federal  Government assist  State  and local  efforts to  provide

programs to meet the educational needs of handicapped children in

order to assure equal protection of the law").  Likewise, in  the

present  context the borrowing praxis  must take into account the

central importance  of  the IDEA's  procedural overlay.   As  the

Supreme  Court has observed, procedure is at the very core of the

IDEA:

          It seems  to us  no exaggeration to  say that
          Congress placed every bit as much emphasis on
          compliance with procedures giving parents and
          guardians  a  large measure  of participation
          . . . as  it did upon the  measurement of the
          resulting IEP against a substantive standard.

Board  of Educ. v. Rowley,  458 U.S. 176,  205-206 (1982); accord
                                                                 

W.G. v.  Board of Trustees, 960  F.2d 1479, 1484 (9th  Cir. 1992)
                          

                    

tion is even more suitable for borrowing in the instant action on
general policy grounds.

     10We  need not  address any  impact that  amended RSA  508:4
(three-year period), or newly  enacted RSA   186-C:16-b, may have
either on the present analysis or on earlier case law relating to
"borrowing" in civil  rights actions under 42 U.S.C.     1981 and
1983.

                                18

(noting centrality  of implementing  procedure to  IDEA statutory

scheme); Mrs. C. v.  Wheaton, 916 F.2d 69,  72-73 (2d Cir.  1990)
                            

(same).

          The  core role of procedure in the IDEA setting is well

illustrated  by Timberlane's  failure  to initiate  the  required

administrative proceedings, see N.H.  Code Admin. R. Ed. 1125.01-
                               

(b) (3)-b; supra  note 4, to  end the IEP  impasse in this  case.
                

While  parents  and  school  officials dithered  and  debated,  a

disabled  child with  special  educational needs  lost day  after

irreplaceable day of educational opportunity mandated by law.  We

cannot  overlook  the  reality  that  a  central  federal  policy

underlying the  IDEA,  and  an  important feature  of  the  IDEA-

implementing  scheme adopted  in  New Hampshire,  have both  been

blunted.  Thus, absent a more particular limitation applicable to

this  extraordinary compensatory  education  claim,  we think  it

appropriate  to borrow  the  New  Hampshire catch-all  limitation

applicable to personal actions generally.11

          In addition,  the  more abbreviated  the limitation  on

compensatory  education claims  the  greater the  disincentive to

                    

     11The  availability of  compensatory education  as  a remedy
under the  IDEA    the  one form  of IDEA relief  that holds  any
potential for  redressing this  deprivation    has  only recently
been recognized in this Circuit, see Pihl, 9 F.3d  at 187-89; and
                                         
only  a year earlier in the District of New Hampshire, Manchester
                                                                 
Sch.  Dist. v. Christopher B.,  807 F. Supp.  860, 867-88 (D.N.H.
                             
1992).   The first reported court of  appeals case to recognize a
compensatory education claim is Miener v. Missouri, 800 F.2d 749,
                                                  
753 (8th  Cir.  1986).   Thus,  the recency  and novelty  of  the
compensatory education remedy likewise suggest that the catch-all
limitation  prescribed   in  RSA  508:4  is   most  suitable  for
borrowing.

                                19

parents  to shed  an  adversarial posture  and  get on  with  the

business  of cooperating  with  school officials  to further  the

special-education  needs of the child.  See David D. v. Dartmouth
                                                                 

Sch.  Comm., 775  F.2d 411,  424 (1st  Cir. 1985)  (IDEA embodies
           

preference for  educational decisions arrived  at through  "good-

faith cooperation  and negotiation among the  parties"); see also
                                                                 

Murphy  I, 973  F.2d  at 16  ("Obviously,  the Murphys  were  not
         

sitting on  their rights,  but were attempting  to resolve  their

differences with the school district without resorting to litiga-

tion.").   The resultant  undermining  of section  1125 would  be

particularly erosive of IDEA  policy in New Hampshire.   Once the

IEP  negotiations had  remained  at an  impasse for  a reasonable

period  of time, i.e., not  long into the  two-year period during
                     

which he received no  special education, the onus was  on Timber-

lane to  obtain administrative approval  to implement the  IEP it

considered appropriate for Kevin.  See supra note 4.
                                            

          Finally, as  noted above,  most IDEA cases  involve the

borrowing  of state  statutes of  limitations for  application to

judicial appeals  from administrative decisions.   See Amann, 991
                                                            

F.2d at  931 (collecting  administrative  review cases  borrowing

limitations ranging from thirty days to three years); Bow, 750 F.
                                                         

Supp. at 548 (similar).  Careful research discloses but one case,

Hall v.  Knott County Bd. of Educ., 941 F.2d 402 (6th Cir. 1991),
                                  

cert.  denied, 112  S.Ct.  982 (1992),  involving a  compensatory
             

education  claim even roughly analogous to the Murphy claim.  The

blind  twenty-seven-year-old plaintiff  in  Hall brought  an IDEA
                                                

                                20

action challenging the appropriateness of the special educational
                                      

services provided to her by the defendant school district between

five  and ten  years earlier.   Id.  at 404-06.   The  Hall court
                                                           

assumed, arguendo, that a five-year limitation applied, but found
                 

the action time-barred  in any  event because it  could not  have

accrued less than six years before the complaint was  filed.  Id.
                                                                 

at 408-09.   Although Hall  is distinguishable  from the  present
                          

action on a  number of  grounds, the most  cogent distinction  is

that the present dispute  involves a total denial of  all special
                                          

education services for an  extended period of time, not  merely a

challenge  to the appropriateness  of special  education services
                                 

provided  years  earlier.    Revisiting  the  appropriateness  of
                                                             

special education services actually provided in school years long

since passed  may  indeed be  an exercise  of "extremely  limited

utility,"  as has been suggested,  see Bow, 750  F. Supp. at 550,
                                          

but given the totality  of the present deprivation the  effort to

evaluate the merits  of the compensatory education claim  in this

case is both useful and far less problematic.

     (iv) Accrual 
                 

          We  turn  now  to the  question  of  accrual, which  is

governed by  federal law.  Hall,  941 F.2d at 408;  G.D. v. West-
                                                                 

moreland  Sch.  Dist., 783  F.  Supp.  1532, 1535  (D.N.H.  1992)
                     

(same); cf.  Rivera-Muriente v. Agosto-Alicea, 959  F.2d 349, 353
                                             

(1st Cir. 1992)  (same,   1983  case).  "The  general rule  under

federal law is  said to be  that [IDEA] claims  'accrue when  the

parents  know or have reason to know  of the injury or event that

                                21

is  the basis for their claim.'"   Hall, 941 F.2d at 408 (quoting
                                       

Judith W. Wegner, Educational  Rights of Handicapped Children, 17
                                                             

J. of L. & Educ. 625, 654

(1988)).  As with the methodology for borrowing a limitation from

state law, no mechanical  formula controls the accrual determina-

tion:  "Where a statute does  not indicate when a cause of action

accrues, the  court must 'keep[] in mind the purpose of the [Act]

and the practical ends to be served by a period of limitations.'"

G.D.,  783 F.  Supp. at  1535 (alterations  in original,  quoting
    

Albert v. Maine Cent. R.R., 905 F.2d 541, 543 (1st Cir. 1990)).
                          

          Pinpointing accrual  in the  present case would  pose a

complex question,  inasmuch as the Murphys'  action challenges an

entire course of  conduct by Timberlane.   Compare, e.g.,  Amann,
                                                                

991  F.2d at 933-34  (involving an appeal  from an administrative

decision and noting under  Massachusetts law that limitation runs

from "receipt of notice  of final decision"); G.D., 783  F. Supp.
                                                  

at 1535-36 (similar, N.H. law).  We need not fix the precise date

of accrual,  however,  since the  Murphys'  claim  unquestionably

accrued within  the six-year  period preceding their  request for

administrative review on August 20, 1989.   Thus, the request for

administrative  review  was  timely whether  accrual  occurred in

October  of  1983 upon  Kevin's  initial trial  placement  at the

Pinkerton school (as Timberlane  urged below), or at the  time he

was  permanently placed  in  January  of  1984  (as  the  Murphys

claimed), or at some intermediate time.   Moreover, from whatever

point in time  within the  two-year period the  Murphys might  be

                                22

found to have known (or had reason to know) either of "the injury

or the event that is the basis for their [compensatory education]

claim," Hall, 941 F.2d at 408, Timberlane remained  in continuous
            

violation of its section 1125 obligation to pursue an administra-

tive resolution to the IEP stalemate.   Consequently, we conclude

that  Timberlane's ongoing  failure to  comply with  section 1125

throughout the relevant portion of the two-year period constitut-

ed  a  unitary violation  under the  IDEA  and the  New Hampshire

implementing regulation.

C.  The Murphy Motion for Summary Judgment
                                          

          As  a  threshold  matter,  two  arguments  advanced  by

Timberlane on  the  merits have  been  foreclosed by  our  recent

decision in Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184 (1st
                                                

Cir. 1993), recognizing a  compensatory education claim under the

IDEA, id. at 187-89, notwithstanding  that the student was beyond
         

the eligible age  for a free  education under  state law, id.  at
                                                             

189-90.  Thus, two further issues remain unaddressed. 

     1.   Section 1125
                      

          The district court  held Timberlane liable  for failing

to  fulfill its section 1125 responsibility  either to present an

acceptable IEP or seek  administrative enforcement.  The district

court  simply applied  our  own  straightforward construction  of

section 1125:

          In  New  Hampshire, 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

                                23

          agency is required to initiate administrative
                            
          procedures to obtain  permission from a hear-
          ing officer to implement  the IEP.  N.H. Code
          Admin.  R. Ed. 1125.01(b)(3)-b.  No such pro-
                                                       
          cedures were ever initiated by Timberlane.
                                                   

Murphy I, 973  F.2d at  17 (footnote omitted  & emphasis  added).
        

Under section 1125, the school district must  take the initiative

to ensure  that intransigence and  foot-dragging in the  IEP pro-

cess,  whether bureaucratic  or  parental,  do  not  indefinitely

compromise the  child's right  to a free  and appropriate  public

education.  See, e.g.,  W.G., 960 F.2d at 1486  (parental conduct
                            

does  not  waive  responsibility  of school  district);  Town  of
                                                                 

Burlington  v. Department of Educ.,  736 F.2d 773,  795 (1st Cir.
                                  

1984) (same), aff'd, 471 U.S. 359 (1985).
                   

          Timberlane's primary argument on appeal is that an IDEA

claim, a federal cause of action, cannot be  premised on a viola-
                

tion  of  a  state  administrative regulation.12    Its  argument
                  

overlooks the IDEA framework and our  case law.  The IDEA invests

expansive  discretion  in the  states  to  structure implementing

procedures  and  enforcement  mechanisms, thereby  constructively

incorporating duly promulgated state regulations:

                    

     12Timberlane  also  argues  that  section  1125  is  invalid
because  it imposes  on  the school  district obligations  beyond
those authorized either by  the IDEA or the New  Hampshire imple-
menting statute.   Neither  argument is  persuasive.  First,  the
IDEA and its companion regulations merely establish  foundational
requirements     states may impose more  stringent procedural and
substantive  requirements.   See  Burlington,  736  F.2d at  789.
                                            
Second, section 1125 is well within the broad authority conferred
upon the New  Hampshire Board of Education  to promulgate regula-
tions under  the  IDEA.   See  N.H. Rev.  Stat. Ann.     186-C:16
                             
(authorizing, inter  alia, regulations  governing appeals  of IEP
                         
team  decisions  and  regulations  relating  to  "other  matters"
pertinent to implementation of the IDEA).

                                24

          [S]tate  standards,  be  they substantive  or
          procedural,  that  exceed  the federal  basic
          floor  of meaningful,  beneficial educational
          opportunity . . . . will operate to determine
          what an appropriate  education requires for a
          particular child in a given state.

Id. at 789  (footnotes omitted); accord David D., 775 F.2d at 417
                                                

(1st  Cir. 1985)  (it is  "beyond cavil  that the  federal [IDEA]

standard  explicitly incorporates" certain  state standards); Doe
                                                                 

v. Board  of Educ. of Tullahoma  City Sch., 9 F.3d  455, 457 (6th
                                          

Cir. 1993) (same, citing cases).  It is  plainly true, of course,

as  Timberlane  argues, that  not  every procedural  irregularity

gives rise to liability under the IDEA.  Nevertheless, "procedur-

al inadequacies [that have]  compromised the pupil's right  to an

appropriate education . . . or caused a deprivation of education-

al benefits" are the stuff of successful IDEA actions.  Roland M.
                                                                 

v. Concord  Sch. Comm., 910 F.2d 983,  994 (1st Cir. 1990) (cita-
                      

tions omitted), cert. denied, 499 U.S.  912 (1991).  And that  is
                            

exactly what happened here.

          We  emphasized in  Murphy I  that whereas  "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."    973  F.2d  at 17  (emphasis  in
          

original).13    Thus, by  its  longstanding  procedural lapse  in

                    

     13Timberlane's  misconceptions about the  IDEA are betrayed,
as  much as anything, by  the contention that  its institution of
truancy proceedings should be  considered the rough equivalent of
the  administrative  adjudication  required  under  section 1125.
Even assuming that Timberlane had done something more than merely
file  the truancy  petition,  a  coercive adversarial  proceeding
against a parent is no substitute for a substantive review of the
special educational needs of the handicapped child.

                                25

failing  to  initiate  administrative review  as  required  under

section 1125,  Timberlane abdicated its responsibility  to termi-

nate  the IEP  impasse preventing  Kevin's access  to a  free and

appropriate  education.   We  think  a  procedural default  which

permits a disabled child's entitlement to a  free and appropriate

education to go unmet for two years constitutes sufficient ground

for liability under the IDEA.  See, e.g., W.G., 960  F.2d at 1484
                                              

(when severe procedural  flaws infect IEP process an  action lies

under IDEA);   Roland M.,  910 F.2d at  994 (same); Mrs.  C., 916
                                                            

F.2d  at 72-73 (same); cf. Hampton Sch. Dist. v. Dobrowolski, 976
                                                            

F.2d  48, 53-54 (1st Cir. 1992) (technical IDEA violations may be

insufficient to warrant setting aside IEP).

     2.  Summary Judgment
                         

          Lastly,   Timberlane  claims  that  genuine  issues  of

material  fact precluded  summary judgment  as to  whether:   (1)

Kevin's parents were intransigent and at least partly responsible

for  interrupting Kevin's  education,  and  (2)  the  educational

services  Timberlane provided from  1985 to 1989  were "more than

appropriate,"  and  thus  compensated for  the  educational  loss

occasioned during 1982-84.   The party resisting summary judgment

"may not rest  upon the mere allegations or denials  of the . . .

pleadings, but . . .  must set forth specific  facts showing that

there  is a  genuine issue for  trial."   Fed. R.  Civ. P. 56(e).

There is no  trialworthy issue unless there  is sufficient compe-

tent  evidence to  enable  a finding  favorable  to the  opposing

party.   Anderson  v.  Liberty Lobby,  Inc.,  477 U.S.  242,  248
                                           

                                26

(1986).

          A painstaking review of the  entire record has not dis-

closed, nor does Timberlane  identify, any evidence sufficient to

generate a genuine  factual issue as  to either contention,  even

assuming  their  materiality.14    Instead,  consistent  with its

prior  strategy, Timberlane  elected to  try to fend  off summary

judgment through recourse to Fed. R. Civ. P. 56(f), which permits

a party  to establish,  by affidavit, that  evidence which  would
                                                                 

demonstrate a trialworthy issue is for some valid reason unavail-

able.   See Fed. R. Civ.  P. 56; see also James  W. Moore et al.,
                                         

Moore's  Federal  Practice     56.22-56.24  (1993).    Timberlane
                          

relied  entirely on  its contention,  unsubstantiated by  the re-

quired  affidavit,15 that  it needed  "an opportunity  to conduct

                    

     14The first  hurdle  confronting Timberlane,  of course,  is
that parental intransigence would not absolve the school district
of its responsibility  under section 1125.   Indeed, section 1125
targets intransigence.   See Murphy I,  973 F.2d at 17;  supra p.
                                                              
23.  Thus, Timberlane  can demonstrate no issue of  material fact
                                                            
in this regard.  But neither has it demonstrated  a genuine issue
                                                           
of  fact.    Although  the record  contains  several  "sarcastic"
letters from Mr. Murphy to  Mr. Sarbanis, Timberlane presented no
evidence suggesting  anything  more than  that Mr.  Murphy was  a
tenacious and zealous advocate for his son's interests.   Summary
judgment should not be disturbed on so fragile a claim, especial-
ly as two school district representatives praised Mr. Murphy as a
cooperative and concerned, indeed model, parent.  Even though Mr.
Sarbanis,  the one school district official  with whom Mr. Murphy
clearly  had a stormy relationship, still lives in New Hampshire,
Timberlane presented  no affidavit  from Sarbanis.   And although
Timberlane's  pleadings are  replete  with allegations  that  Mr.
Murphy was  intransigent, "[b]rash  conjecture, coupled  with the
hope that something concrete will materialize, is insufficient to
block summary judgment."   Dow  v. United Bhd.  of Carpenters,  1
                                                             
F.3d 56, 58 (1st Cir. 1993).

     15Given that the district  court had already rejected essen-
tially  these same  contentions, advanced  in support  of Timber-
lane's laches defense, see  supra pp. 6-8, the failure  to comply
                                 

                                27

discovery to reconstruct [the]  chronology [of Kevin's education]

and  to fill in critical gaps about events which occurred before,

during and after  the years  in question[,]" and  to "depose  the

out-of-state witnesses."

          The district  court  rejected Timberlane's  Rule  56(f)

initiative,  on  the  ground that  the  evidence  adduced  at the

hearing on  the laches  defense demonstrated that  Timberlane had

made no serious  effort to  present its putative  evidence.   The

court  accordingly ruled  that Timberlane  could not  take refuge

from  summary judgment under Rule 56(f) since the memories of its

witnesses were available for  affidavit purposes in opposition to

the  Murphys' motion for summary judgment.  The Rule 56(f) deter-

mination is reviewed for  abuse of discretion.  First  Nat'l Bank
                                                                 

v. Cities Service Co., 391 U.S. 253, 294 (1968).  We find none.
                     

          In March of 1993, more than one month after the eviden-

tiary hearing on the laches defense, the district court entered a

scheduling  order requiring  the  parties to  submit "law  and/or

evidence" on  the merits of  the compensatory education  claim   

thereby  plainly signaling  its intention  to proceed  beyond the

procedural defenses interposed by Timberlane.  Shortly thereafter

the  Murphys filed  their  motion for  summary  judgment.   Thus,

although it  had  clear  notice that  the  district  court  would

proceed to the merits, Timberlane made the  strategic decision to

                    

with the Rule  56(f) affidavit requirement was  no mere technical
lapse.  See Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir. 1984)
                              
(Rule  56(f)  affidavit  requirement  generally  to  be  enforced
liberally, but district court need not spare litigants the effect
of their own neglect).

                                28

persist  with its  litigation position, viz.,  that it  could not
                                            

provide evidence  because its witnesses (or  their memories) were

unavailable.   The district court did not abuse its discretion by

declining  to credit  or  revisit the  flawed premise  underlying

Timberlane's Rule 56(f) motion.

                               III

                            CONCLUSION
                                      

          For the foregoing reasons, we uphold the district court

order  disallowing defendant-appellant's defenses  and affirm the

judgment in favor of plaintiffs-appellees.

          Affirmed.
                  

                                29