Murphy v. Timberlane

• Court: Court of Appeals for the First Circuit
• Decided: August 28, 1992
• Docket: 91-2272
• Status: Published

Opinion

USCA1 Opinion

August 28, 1992   UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 91-2272

                               KEVIN W. MURPHY, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                         TIMBERLANE REGIONAL SCHOOL DISTRICT,

                                 Defendant, Appellee.

                                _____________________

                                     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
                                 ____________________

No. 91-2272

                               KEVIN W. MURPHY, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                         TIMBERLANE REGIONAL SCHOOL DISTRICT,

                                 Defendant, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

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

____________________

                                        Before

                                  Cyr, Circuit Judge,
                                       _____________
                            Roney,* Senior Circuit Judge,
                                    ____________________
                            and Pieras,** District Judge.
                                          ______________

                                 ____________________

            Michael R. Chamberlain  with whom Chamberlain  and Connor  were on
            ______________________            _______________________
        brief for appellants.
            Diane  M. Gorrow  with whom  Gerald  M.  Zelin and  Soule, Leslie,
            ________________             _________________      ______________
        Zelin, Sayward and Loughman were on brief for appellee.
        ___________________________

____________________

____________________

        _____________________

        *  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
                   ____________________

        Individuals with Disabilities Education Act (Act), 20 U.S.C.   1400 et
                                                                            __

        seq.  Kevin W.  Murphy, along with  his parents and guardians,  Janice
        ___

        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
                                          __

        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,
                                  ____________________________

        203-07  (1982); Abrahamson v. Hershman, 701 F.2d 223, 226-27 (1st Cir.
                        ______________________

        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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                                          5

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
                                                                       _______

        Burlington  v. Department of Education, 736 F.2d 773, (1st Cir. 1984),
        ______________________________________

        aff'd, 471 U.S. 359 (1985).  Indeed, according  to our research, every
        _____

        circuit  which   has  addressed  this  issue  since  our  decision  in

        Burlington  was  affirmed  by   the  Supreme  Court  has   found  that
        __________

        compensatory  education is available under the Act.  See, e.g., Lester
                                                             ___  ____  ______

        H. v.  Gilhool, 916  F.2d 865  (3d Cir. 1990),  cert. denied  sub nom.
        ______________                                  _____________________

        Chester Upland Sch. Dist. v. Lester H.,     U.S.     , 111 S. Ct. 1317
        _____________________________________   ___      ____

        (1991); Burr v. Ambach, 863 F.2d 1071 (2d Cir.), vacated  and remanded
                ______________                           _____________________

        sub nom. Sobol v. Burr, 492  U.S. 902, 109 S.Ct. 3209 (1988), reaff'd,
        _______  _____________                                        _______

        888  F.2d  258 (2d  Cir. 1989),  cert. denied,  494 U.S.  1005 (1990);
                                         ____  ______

        Jefferson County Bd. of Educ. v. Breen, 853 F.2d 853 (11th Cir. 1988);
        ______________________________________

        Miener v. State of Missouri, 800 F.2d 749 (8th Cir. 1986).  
        ___________________________

            Assuming  that   compensatory  education  is   available  in  this

        circuit, it, like reimbursement,  is a form of equitable  relief.  See
                                                                           ___

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                                          7

Burlington,  736 F.2d at 799,  801-02; Jefferson County  Bd. of Educ.,
        __________                             _____________________________

        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
                                   ______________________________________

        F.2d 907,  911 (1st Cir. 1989).   See Gutierrez v.  Waterman Steamship
                                          ___ ________________________________

        Corp., 373 U.S. 206, 215, reh'g. denied, 374 U.S. 858 (1963).
        ____                      _____________

            We reverse the district court's grant  of summary judgment on  the

        ground that the claimed is  barred by laches for two reasons.   First,
                                                                        _____

        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
                     ______

        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
                     ____________________________________

        (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
                       __  ___________________________________________________

        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-
                         _______________________________________

        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,
                                 __________

        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
                            
        ____________________

        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
                             ____________________________________________
            Procedures Section  of the Standards to  obtain the authority
            __________                 _________
            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,
                                         ____________________________________

        864 F.2d  881, 895 (1st Cir.  1988) (quoting Greenburg v.  Puerto Rico
                                                     _________________________

        Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir. 1987)).
        _______________________

            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
                                                                           ___

        Gutierrez v.  Waterman Steamship  Corp., 373  U.S. 206,  215-16, reh'g
        ______________________________________                           _____

        denied,  374  U.S.  858  (1963);  Puerto  Rican-American  Ins. Co.  v.
        ______                            ____________________________________

        Benjamin Shipping Co.,  829 F.2d  281, 284  (1st Cir.  1987); Cruz  v.
        ____________________                                          ________

        Hauck, 762 F.2d 1230, 1238 (5th Cir. 1985).  Two of the factors relied
        _____

        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).
                                                    ___

        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.
                                                               ___ ___________

        University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).
        _________________________

            Vacated and Remanded.
            ____________________

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