D.M. et al v. NEW JERSEY DEPARTMENT OF EDUCATION et al
OPINION fld. Signed by Judge Esther Salas on 11/17/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
D.M. & L.M. o/b/o E.M., LEARNING
CENTER FOR EXCEPTIONAL
Civil Action No. 14-4620 (ES)
NEW JERSEY DEPARTMENT OF
EDUCATION, et al.,
SALAS, DISTRICT JUDGE
This matter comes before the Court on Defendants’ motion to dismiss Plaintiffs’ Complaint
pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (D.E. No. 33). Defendants
are the New Jersey Department of Education (“NJDOE”); Linda Chavez, NJDOE Passaic County
Supervisor of Child Study; and Peggy McDonald, NJDOE Director of the Office of Special
Education Programs (collectively, “Defendants”).
The Court has considered the parties’
submissions and decides this matter without oral argument pursuant to Federal Rule of Civil
Procedure 78(b). For the reasons below, the Court grants in part and denies in part Defendants’
motion to dismiss.
Factual and Procedural Background
The Court previously discussed the factual background of this case as it relates to Plaintiffs
D.M. and L.M. (collectively, “Plaintiff Parents”) and their daughter, E.M. (D.E. No. 23, Aug. 28,
2014 Opinion (“Op.”) at 3-4). Therefore, the Court will primarily detail the factual background as
it relates to Plaintiff Learning Center for Exceptional Children (“LCEC”) and will briefly restate
the facts underlying Plaintiff Parents’ claims.
A. Background Regarding LCEC
LCEC is a private school for students with disabilities (“PSSD”). (D.E. No. 1, Complaint
(“Compl.”) ¶¶ 2, 34). LCEC’s students have been classified by their local school districts as
eligible to receive special education and related services pursuant to the Individuals with
Disabilities Education Act (“IDEA”) and New Jersey statutes and regulations. (Id. ¶ 38). Each
student that attends LCEC has an Individualized Education Program (“IEP”) that designates LCEC
as his or her educational placement. 1 (Id. ¶ 39). LCEC currently maintains two programs, which
are informally known as the “Speer program” and the “Scoles program.” (Id. ¶ 36). The Speer
program is located in Clifton, New Jersey and is housed in the same building as Today’s Learning
Center (“TLC”), a private, regular education school. 2 (Id. ¶¶ 37, 45, 48).
To comply with the IDEA’s mandate that students be educated in the “least restrictive
environment,” LCEC integrates students in the Speer program with TLC’s students for nonacademic activities, like lunch and recess. 3 (Id. ¶ 40). This practice is often referred to as
“mainstreaming.” (Id. ¶ 17). Currently, ten students in the Speer program have IEPs that also call
for mainstreaming in their academic programs. (Id. ¶ 41). LCEC provides this academic
mainstreaming by integrating the ten students, to a varied extent, with “the regular education
population at TLC.” (Id. ¶¶ 41-43).
An IEP is a written statement for a child with a disability. 20 U.S.C. § 1414(d)(1)(A). An IEP includes
statements of, among other things: “the child’s present levels of academic achievement and functional
performance,” “measurable annual goals, including academic and functional goals,” and “the special
education and related services and supplementary aids and services . . . to be provided to the child.” Id.
2 The Scoles program is housed at a different location in Clifton. (Id. ¶ 52).
Section 1412(a)(5)(A) of the IDEA provides that, “[t]o the maximum extent appropriate, children with
disabilities . . . are [to be] educated with children who are not disabled.” 20 U.S.C. § 1412(a)(5)(A).
Before the start of the 2011-2012 school year, NJDOE required LCEC to apply for “nontemporary approval” of its Speer program.
(Id. ¶ 47).
Accordingly, LCEC submitted a
“Comprehensive Program Proposal” to NJDOE, which explicitly listed the “[i]ntegration of
disabled and non-disabled peers to promote appropriate social modeling and language” as a unique
feature of LCEC’s program. (D.E. No. 1-6, Ex. A, Comprehensive Program Proposal at 7; see
also Compl. ¶ 49). By letter dated July 19, 2011, NJDOE approved LCEC for the 2011-2012 and
2012-2013 school years. (D.E. No. 1-7, Ex. B, Approval Letter; see also Compl. ¶ 50).
In 2013, LCEC sought approval to relocate the Speer Program to 199 Scoles Avenue,
where the Scoles program was housed. (Compl. ¶ 53). To that end, on August 5, 2013, LCEC
submitted forms to NJDOE that detailed its academic programs. (Id. ¶¶ 54-57; D.E. No. 1-8, Ex.
C, Relocation Forms). On December 2, 2013, during the course of the relocation approval process,
the Interim Executive Superintendent for Passaic County, Scott Rixford, sent a letter to LCEC.
(Compl. ¶ 58). This letter requested “a statement of assurance that non-public school students
from TLC are not in class with public school students from LCEC.” (D.E. No. 1-9, Ex. D, Dec. 2,
2013 Letter From Scott Rixford at 2; see also Compl. ¶ 58).
By letter dated December 19, 2013, LCEC responded to Rixford and challenged NJDOE’s
authority to prohibit it from mainstreaming. (D.E. No. 1-10, Ex. E, Dec. 19, 2013 LCEC Response
Letter (“LCEC Response Ltr.”) at 2; see also Compl. ¶ 61). In pertinent part, LCEC stated that it
was “unaware of any code provision that prohibits the location of special needs children and
typically developing children in the same classroom.” (Dec. 19, 2013 LCEC Response Ltr. at 2).
LCEC further asserted that “the ‘mainstreaming’ of students with special needs is encouraged by
federal and state education laws and regulations, and would be done pursuant to the students’
Individualized Education Plans.” (Id.).
Roughly two months later, LCEC received a letter dated February 14, 2014 from Defendant
Linda Chavez, stating that LCEC’s application for relocation had been denied. (Compl. ¶ 63; see
also D.E. No. 1-11, Ex. F, Feb. 14, 2014 Letter from Linda Chavez (“Chavez Ltr.”) at 1). Chavez
stated that the basis for the denial was LCEC’s practice of “plac[ing] special needs children and
typically developing children in the same classroom. . . . in violation of N.J.A.C. 6A:14-4.7(a).”
(Chavez Ltr. at 1 (internal quotation marks omitted); see also Compl. ¶ 64). LCEC claims that, as
a result of this denial, NJDOE “was now disapproving a program it had previously approved only
two years prior, at which time the mainstreaming aspect of the Speer program was explicitly
identified for the DOE, and the DOE approved it.” (Compl. ¶ 66).
Subsequently, by letter dated March 18, 2014, Defendant Peggy McDonald advised LCEC
that it was being placed on “conditional approval” status effective the date of the letter, in part
because LCEC’s mainstreaming practices violated N.J.A.C. § 6A:14-4.7(a). (D.E. No. 1-13, Ex.
H, Mar. 18, 2014 Letter From Peggy McDonald (“McDonald Ltr.”) at 1-2; see also Compl. ¶ 73).
As a result of its conditional approval status, LCEC is prohibited from accepting new students.
See N.J.A.C. § 6A:14-7.10(b)(1)(i) (“An approved private school which is issued a conditional
approval status may not accept new students.”); (see also Compl. ¶ 76; McDonald Ltr. at 1). As
of the filing of this action in July 2014, at least one school district planned to remove three students
from LCEC for the 2014-2015 school year because of LCEC’s conditional approval status.
(Compl. ¶¶ 83-84). LCEC claims that its conditional approval status has led to substantial financial
loss. (Id. ¶¶ 89, 93).
LCEC initially appealed its conditional approval status to the New Jersey Commissioner
of Education (“the Commissioner”) by filing a motion for emergent relief on May 21, 2014. (Id.
¶ 111). This motion was transmitted to the New Jersey Office of Administrative Law (“OAL”),
and the Commissioner issued a final decision on August 10, 2014, denying LCEC’s motion for
emergent relief. (D.E. No. 33-1, Memorandum of Law in Support of State Defendants’ Motion to
Dismiss the Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (“Def. Mov. Br.”) at 45). In addition to filing the motion for emergent relief, LCEC also filed a Petition of Appeal with
the Commissioner, challenging NJDOE’s decision to place it on conditional approval status.
(Compl. ¶ 122). This appeal was subsequently consolidated in the OAL with a related appeal,
challenging NJDOE’s denial of LCEC’s request to relocate its program. (Id. ¶¶ 99, 122-23).
In May 2015, LCEC and NJDOE filed cross-motions for summary decision regarding the
pending petitions of appeal. (See D.E. No. 39-1, Initial Decision of ALJ Bass (“ALJ Op.”) at 3;
see also D.E. No. 36, July 17, 2015 Joint Ltr.). On August 14, 2015, Administrative Law Judge
(“ALJ”) Ellen S. Bass issued an Initial Decision dismissing the petitions of appeal, granting
NJDOE’s motion for summary decision, and denying LCEC’s motion for summary decision. (ALJ
Op. at 12). In pertinent part, the ALJ concluded that NJDOE’s action “in March 2014, placing
LCEC on conditional approval because children were improperly mainstreamed, was appropriate
and consistent with law and regulation.” (Id. at 11). On September 24, 2015, the Commissioner
of Education adopted the ALJ’s Initial Decision as the final decision in the matter. (D.E. No. 451, Commissioner of Education Decision).
Background Regarding E.M.
Plaintiff Parents’ daughter, E.M., was classified by her local school district as eligible to
receive special education and related services under the category “Multiply Disabled.” (Compl.
¶ 21). Since January 2011, E.M. has been a student at LCEC pursuant to an IEP that designates
the school as her out-of-district educational placement based on her academic, social, and
emotional needs. (Id. ¶¶ 22-23). Among other things, E.M.’s “IEP calls for her to [be] integrated
with regular education students in a small classroom at TLC with a low student-to-teacher ratio.”
(Id. ¶ 25). According to Plaintiff Parents, “the mainstreaming component of [E.M.’s IEP] . . . is
essential to E.M’s education,” (id. ¶ 29), and E.M.’s “IEP team is in agreement that LCEC is the
most appropriate placement for E.M., as the mainstreaming component is a large part of what E.M.
needs to be successful,” (id. ¶ 32).
On July 23, 2014, after LCEC commenced administrative proceedings challenging its
conditional approval status, Plaintiffs filed the instant, three-count Complaint. (D.E. No. 1).
Plaintiff Parents allege in Count One that Defendants NJDOE and Chavez have violated E.M.’s
rights under the IDEA. (Compl. ¶ 138). In particular, Plaintiff Parents seek a judicial declaration
that Defendants NJDOE and Chavez’s “interpretation of . . . N.J.A.C. 6A:14-4.7(a) interferes with
E.M.’s right under the [IDEA] to have her program implemented as formulated by [her] IEP.” (Id.
¶ 138(a)) (italics omitted). Additionally, Plaintiff Parents seek an injunction prohibiting Chavez
and NJDOE “from enforcing N.J.A.C. 6A:14-4.7(a) in a manner that precludes LCEC from
implementing the mainstreaming component of E.M.’s IEP.” (Id. ¶ 138(b)) (italics omitted). In
Count Three of the Complaint, Plaintiff Parents assert they are entitled to attorneys’ fees and costs
pursuant to 20 U.S.C. § 1415(i)(3)(B) upon prevailing on their IDEA claim. (Id. ¶¶ 142-144).
In Count Two of the Complaint, LCEC alleges that, by prohibiting the school from
mainstreaming students in accordance with their IEPs, Defendants NJDOE and Chavez “have
precluded LCEC from honoring its legal obligations under the IDEA and corresponding state law
to implement students’ IEPs.” (Id. ¶ 140). LCEC seeks a judicial declaration that Defendants
NJDOE and Chavez’s interpretation of N.J.A.C. § 6A:14-4.7(a) “interferes with LCEC’s
obligations under the IDEA,” and that “the IDEA permits LCEC to implement IEPs that contain a
(Id. ¶¶ 141(a)-(b)).
Additionally, LCEC seeks an injunction
prohibiting Defendants NJDOE and McDonald “from continuing to keep LCEC on conditional
approval status.” (Id. ¶ 141(c)).
Plaintiffs filed the Complaint on an emergent basis, as they commenced this action on July
23, 2014 by way of an Order to Show Cause seeking temporary restraints and a preliminary
injunction lifting LCEC’s conditional approval status. (D.E. No. 1-5). That same day, the Court
heard oral argument, denied Plaintiffs’ request for temporary restraints, and set an expedited
briefing schedule regarding the request for a preliminary injunction. (D.E. No. 3).
On July 28, 2014, Defendants moved to dismiss Plaintiffs’ Complaint. (D.E. No. 5).
However, on August 11, 2014, Defendants requested permission to withdraw their motion to
dismiss and refile it at a later date. (D.E. No. 21). On August 14, 2014, the Court granted
Defendants’ request and further granted that Defendants had leave to refile their motion to dismiss
following the resolution of Plaintiffs’ pending preliminary injunction motion. (D.E. No. 22). On
August 28, 2014, the Court granted a limited preliminary injunction in the form of a “stay-put
order,” which enjoined Defendants from interfering with LCEC’s implementation of E.M.’s IEP
during the pendency of the proceedings. (D.E. Nos. 23, 24). On December 12, 2014, the parties
submitted a joint filing containing Defendants’ refiled motion to dismiss and supporting brief,
(D.E. Nos. 33, 33-1), Plaintiffs’ opposition brief, (D.E. No. 33-4), and Defendants’ reply brief,
(D.E. No. 33-8). The matter is now ripe for resolution.
Federal Rule of Civil Procedure 12(b)(1)
Federal courts have limited jurisdiction to adjudicate cases and controversies. See U.S.
Const. art. III, § 2. The burden of demonstrating the existence of federal jurisdiction is on the
party seeking to invoke it. See Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.
2009) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) “attacks . . . the
right of a plaintiff to be heard in Federal court.” Cohen v. Kurtzman, 45 F. Supp. 2d 423, 428
(D.N.J. 1999). When ruling on such a motion, a distinction must be made between a facial and
factual attack. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). “[A]
facial attack ‘contests the sufficiency of the pleadings.’” Constitution Party of Pa. v. Aichele, 757
F.3d 347, 358 (3d Cir. 2014) (quoting In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d
Cir. 2012)). By contrast, “a factual attack concerns the actual failure of a [plaintiff’s] claims to
comport [factually] with the jurisdictional prerequisites.” Id. (quoting CNA v. United States, 535
F.3d 132, 139 (3d Cir. 2008) (alterations in original) (internal quotation marks omitted)). If the
Rule 12(b)(1) motion is a facial attack, “the court looks only at the allegations in the pleadings and
does so in the light most favorable to the plaintiff.” U.S. ex rel. Atkinson v. Pa. Shipbuilding Co.,
473 F.3d 506, 514 (3d Cir. 2007) (citing Mortensen, 549 F.2d at 891). On the other hand, when
the Rule 12(b)(1) motion is a factual attack, “no presumptive truthfulness attaches to plaintiff’s
allegations, and the existence of disputed material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional claims.” Mortensen, 549 F.2d at 891.
Additionally, “court[s] can raise sua sponte subject-matter jurisdiction concerns.” Nesbit
v. Gears Unlimited, Inc., 347 F.3d 72, 77 (3d Cir. 2003); see also Fed. R. Civ. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action.”). The same standard of review applies regardless of whether a court raises subject matter
jurisdiction sua sponte or whether a party moves for dismissal pursuant to Rule 12(b)(1).
Thompson v. Martinez, No. 10-5990, 2012 WL 2990646, at *2 (D.N.J. July 20, 2012) (citing
Orthopedic Specialists of N.J. PA v. Horizon Blue Cross/Blue Shield of N.J., 518 F. Supp. 2d 128,
131-32 (D.N.J. 2007)).
In the context of an IDEA claim, as is the case here, “the exhaustion of administrative
remedies is a jurisdictional matter.” H.A. v. Teaneck Bd. of Educ., No. 09-3301, 2010 WL 891830,
at *4 (D.N.J. Mar. 10, 2010). When claims fall within the ambit of the IDEA, plaintiffs fail to
exhaust their administrative remedies, and no exception to the exhaustion requirement applies, a
court must dismiss such claims for lack of subject matter jurisdiction. Batchelor v. Rose Tree
Media Sch. Dist., 759 F.3d 266, 269, 281 (3d Cir. 2014).
Federal Rule of Civil Procedure 12(b)(6)
For a complaint to survive dismissal pursuant to Rule 12(b)(6), it “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual
allegations contained in the complaint as true and draw all reasonable inferences in favor of the
non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). However,
“the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions,” and “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555).
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as undisputedly authentic documents
if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2011). Where a complaint is subject to dismissal under Rule 12(b)(6), “a district court
must permit a curative amendment unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245.
Plaintiff Parents’ Claim
In Count One of the Complaint, Plaintiff Parents allege that “[s]tates receiving federal
funds for education must provide every disabled child with a ‘free appropriate public education,’
(‘FAPE’), which is embodied in an Individualized Education Program.” (Compl. ¶ 132). They
assert that the “IEP is the mechanism through which an education is delivered to disabled
children.” (Id. ¶ 133). Plaintiff Parents allege that, “[i]n enforcing N.J.A.C. 6A:14-4.7(a) against
LCEC in a manner that precludes it from implementing the mainstreaming component of E.M’s
IEP, the [NJDOE] and Linda Chavez have violated E.M.’s rights under the IDEA.” (Id. ¶ 138)
Defendants argue in relevant part that Count One should be dismissed because Plaintiff
Parents have not stated a valid claim under the IDEA. (Def. Mov. Br. at 28). However, after
reviewing the parties’ arguments in connection with the motion to dismiss, the Court sua sponte
raised the jurisdictional issue of whether Plaintiff Parents were required to exhaust their
administrative remedies before pursuing their IDEA claim in federal court. 4 (D.E. No. 34, July
10, 2015 Letter Order). In response, both parties submitted supplemental letter briefs in support
of their positions. The Court first addresses whether it has subject matter jurisdiction over Plaintiff
Parents’ claim, as that is a threshold issue.
Plaintiff Parents contend that there is no administrative process through which they can
challenge NJDOE’s interference with their daughter’s rights under the IDEA. (D.E. No. 35,
As noted in the Court’s previous Opinion, it is undisputed that Plaintiff Parents have not filed a complaint
with NJDOE or a petition for a due process hearing. (Op. at 7 n.4).
Plaintiffs’ Reply Letter (“Pl. Reply Ltr.”) at 1-2). In the alternative, they argue that, even if they
could avail themselves of the administrative process, their claim raises a pure question of law,
which is a recognized exception to the exhaustion requirement. (Id. at 2-4). By contrast,
Defendants assert that, to the extent Plaintiff Parents allege that NJDOE’s regulation of LCEC
interferes with E.M.’s IEP, the administrative process is the appropriate forum for their IDEA
claim. (D.E. No. 37, Defendants’ Reply Letter (“Def. Reply Ltr.”) at 3-4). Specifically, they argue
that this type of “claim falls squarely within the administrative procedure for a due process
complaint.” (Id. at 3). Furthermore, Defendants argue that the exceptions to administrative
exhaustion do not apply here. (Id. at 4-5).
Generally, parties are required to exhaust their administrative remedies before pursuing an
IDEA claim in federal court. Section 1415(i)(2) of the IDEA provides that “[a]ny party aggrieved
by the findings and decision made” in a due process hearing “ha[s] the right to bring a civil action
with respect to the complaint . . . in a district court of the United States.” 20 U.S.C. § 1415(i)(2).
When a district court hears an action brought pursuant § 1415(i)(2), the court reviews the
administrative record, hears any additional evidence submitted by either party, and is authorized
to “grant such relief as the court determines is appropriate.” Id. § 1415(i)(2)(C)(i)-(iii). Although
§ 1415(i)(2) grants subject matter jurisdiction to federal courts, “it is clear from the language of
the [IDEA] that Congress intended plaintiffs to complete the administrative process before
resorting to federal court.” Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d
Cir. 1994); see also Batchelor, 759 F.3d at 272 (“In the normal case, exhausting the IDEA’s
administrative process is required in order for the statute to grant subject matter jurisdiction to the
district court.” (internal quotation marks and alterations omitted)); R.S. v. Glen Rock Bd. of Educ.,
No. 14-0024, 2014 WL 7331954, at *3 (D.N.J. Dec. 19, 2014) (“Individuals who wish to state a
claim under the IDEA, however, ‘must exhaust administrative remedies’ prior to initiating a
lawsuit.” (quoting Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 270-71 (3d Cir. 2014))).
Strong policy justifications underlie the requirement that a party exhaust his or her
administrative remedies before pursuing IDEA claims in federal court. Komninos, 13 F.3d at 778;
see also J.T. ex rel. A.T. v. Dumont Pub. Schs., 533 F. App’x 44, 53 (3d Cir. 2013) (stating that the
“exhaustion rule serves a number of important purposes, including (1) permitting the exercise of
agency discretion and expertise on issues requiring these characteristics; (2) allowing the full
development of technical issues and a factual record prior to court review; (3) preventing deliberate
disregard and circumvention of agency procedures established by Congress; and (4) avoiding
unnecessary judicial decisions by giving the agency the first opportunity to correct any error”).
Nonetheless, the Third Circuit has identified four exceptions to the administrative
exhaustion requirement. See Komninos, 13 F.3d at 778. These exceptions include situations
“where: (1) exhaustion would be futile or inadequate; (2) the issue presented is purely a legal
question; (3) the administrative agency cannot grant relief; and (4) exhaustion would cause severe
or irreparable harm.” D.E. v. Central Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014). There
is an overlap between the four exceptions, as courts have recognized that one ground for finding
futility is where the issues involved are purely legal. See Lester H. by Octavia P. v. Gilhool, 916
F.2d 865, 869 (3d Cir. 1990); see also Old Bridge Bd. of Educ. v. R.D. ex rel., No. 15–3886, 2015
WL 4464152, at *4 (D.N.J. July 21, 2015) (“The purely legal exception to exhaustion is derived
from the futility exception.”); D.D., Kristi H. ex rel. Virginia H. v. Tri-Valley Sch. Dist., 107 F.
Supp. 2d 628, 633 (M.D. Pa. 2000) (“The basis for the exception regarding purely legal questions
is futility.”). “Absent the existence of any of those exceptions, failure to exhaust will deprive a
federal court of subject matter jurisdiction.” Central Dauphin Sch. Dist., 765 F.3d at 275.
Significantly, “[t]he party seeking relief from exhaustion bears the burden of proof.” L.V. ex rel.
G.V. v. Montgomery Twp. Sch. Dist. Bd. of Educ., No. 13-2595, 2013 WL 2455967, at *4 (D.N.J.
June 5, 2013) (citing Honig v. Doe, 484 U.S. 305, 327 (1988)).
Here, Plaintiff Parents argue that the administrative process does not permit them to
challenge NJDOE’s “interference with E.M.’s rights under the IDEA” because NJDOE cannot be
a party at the administrative level. (Pl. Reply Ltr. at 1-2). The Court agrees. On appeal of the
preliminary injunction entered in favor of Plaintiff Parents, the Third Circuit held that, “the
administrative process [in the instant case] would be unable to grant relief, and so exhaustion of
that process is unnecessary.” D.M. v. New Jersey Dept. of Educ., No. 14-4044, 2015 WL 5255088,
*4 (3d Cir. Sept. 10, 2015). In particular, the Circuit concluded that “[n]either IDEA nor the New
Jersey administrative code provides administrative means for a parent to challenge an action of a
state agency, only to challenge action of a local public school system.” Id. As the Third Circuit
noted, Plaintiff Parents are not challenging the local public school system—in fact, Plaintiff
Parents agree with the local public school system. Rather, it is the state agency’s decision which
Plaintiff Parents seek to challenge. Accordingly, Plaintiff Parents’ “failure to exhaust [the]
administrative remedies does not deprive the District Court of jurisdiction.” Id.
Next, the Court considers Defendants’ arguments that Count One of the Complaint should
be dismissed. First, Defendants argue that the Court should dismiss Count One because Plaintiffs
do not have a right to dictate the NJDOE’s regulatory function. (Def. Mov. Br. at 21-28).
According to Defendants, Plaintiff Parents’ requested relief would require an order directing the
NJDOE to approve TLC. (Id. at 23-25). By contrast, Plaintiff Parents assert that they are not
seeking an order directing the NJDOE to approve TLC. (Pl. Opp. Br. at 9).
Defendants’ argument fails to consider, however, the totality of Plaintiff Parents’ requested
relief. Pursuant to Count One, Plaintiff Parents seek a declaratory judgment, an injunction, and
any other relief the Court deems just. (Compl. ¶ 138(a)-(c)). In particular, Plaintiff Parents seek
declaratory judgment that Defendants’ “interpretation of the regulation found at N.J.A.C. 6A:144.7(a) interferes with E.M.’s rights under the Individuals with Disabilities Act . . . .” (Compl. ¶
138(a)). Defendants have failed to, however, establish why a declaratory judgment is unavailable
to Plaintiff Parents under the IDEA. Indeed, a declaratory judgment is an action where “any court
. . . may declare the rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). Whether or not Plaintiff
Parents’ other requested relief would require an improper order or regulation of the NJDOE is of
no moment with respect to the declaratory judgment sought. 5 A declaratory judgment does not
require the Court to issue an order directing the action of the parties, it provides the Court the
ability to “declare the rights and other legal relations” of the parties. 28 U.S.C. § 2201(a)
(emphasis added); see also Step-Saver Data Sys., Inc. v. Wyse Tech., 912 F.2d 643, 649 (3d Cir.
1990) (“The idea behind the [Declaratory Judgment] Act was to clarify legal relationships.”);
Black’s Law Dictionary (10th ed. 2014) (defining declaratory judgment as a “binding adjudication
that establishes the rights and other legal relations of the parties without providing for or ordering
enforcement”). Accordingly, Defendants fail to establish why Count One should be dismissed.
Second, Defendants contend that the NJDOE’s regulation of LCEC does not give Plaintiff
Parents a right of action under the IDEA. On appeal, the Third Circuit recently addressed whether
Plaintiff Parents’ claims falls within Section 1415 of the IDEA. According to the Third Circuit,
E.M. believes that the [NJDOE’s] interpretation of the scope of LCEC’s approvals
is incorrect, arbitrary, and capricious. By imposing its interpretation of the scope of
Any issues with the implementation or availability of Plaintiff Parents’ requested relief are better suited
for a summary judgment or trial, when the Court can consider matters outside of the Complaint.
LCEC’s approvals on E.M., the [NJDOE] would prevent E.M. from having her IEP
implemented as worded: that she attend LCEC and integrated classes with students
at TLC. Because receiving an education in compliance with her IEP is a part of
receiving a free appropriate public education under IDEA . . . the [NJDOE] is thus
arguably interfering with her ability to receive a free appropriate public education.
The entire purpose of § 1415 is to provide parents “procedural safeguards with
respect to the provisions of a free appropriate public education.”
D.M., 2015 WL 5255088, *5 (citing 20 U.S.C. § 1415(a)). Additionally, the Third Circuit stated
E.M’s claim focuses on a responsibility of the state educational agency under
IDEA: proper regulation of private school to which local public-school districts will
send students with disabilities. If the [NJDOE] fails to do this properly, it has
directly breached one of its obligations under IDEA. . . . The fact that E.M.
challenges the way in which the [NJDOE] performs one of its obligations as a state
educational agency under IDEA demonstrates that E.M.’s claims falls within the
ambit of § 1415.
Id. (citing 20 U.S.C. § 1415(a)(10)(B)).
Essentially, the Third Circuit held because Plaintiff Parents challenge the NJDOE’s
performance as a state agency under the IDEA and the effect it has on E.M.’s IEP, their claims fall
within the purpose of Section 1415 of the IDEA. See id. Given the Third Circuit’s interpretation
of Plaintiff Parents’ claims, the Court concludes that Plaintiff Parents have a private right of action
under the IDEA. Thus, the Court denies Defendants’ motion to dismiss Count One of the
Given that Count One of the Complaint survives, the Court concludes that Count Three—
attorneys’ fees for prevailing on Count One—may proceed as well.
Defendants seek to dismiss Count Two of the Complaint on the grounds that LCEC, as a
PSSD, does not have a private right of action under the IDEA. (Def. Mov. Br. at 15-18). In
response, LCEC asserts that it has a private right of action because its claim is based on a particular
child’s educational needs. (D.E. No. 33-4, Plaintiffs’ Brief in Opposition to Defendants’ Motion
to Dismiss (“Pl. Opp. Br.”) at 15). To resolve this motion to dismiss, the Court assesses whether
a PSSD has a private right of action to sue a state education agency (“SEA”) for an alleged
violation of the IDEA. For the reasons set forth below, the Court concludes that a PSSD does not
have such a right of action and that LCEC’s claim therefore must be dismissed. 6
The Supreme Court has made clear that, “[l]ike substantive federal law, private rights of
action to enforce federal law must be created by Congress.” Alexander v. Sandoval, 532 U.S. 275,
287 (2001) (citing Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979)). An express right
of action exists where Congress explicitly provides for it in the text of the federal statute itself.
Wisniewski v. Rodale, Inc., 510 F.3d 294, 297 (3d Cir. 2007); Three Rivers Ctr. v. Hous. Auth. of
the City of Pittsburgh, 382 F.3d 412, 420 (3d Cir. 2004). As the Third Circuit explained in Three
Rivers Center, “[d]etermining whether a statute explicitly provides a private remedy involves a
relatively straightforward inquiry. A court must look to the text of the statute to see if it states, by
its terms, that a private party may bring suit to enforce it.” 382 F.3d at 420.
In the absence of an express right of action, “a court must next look to Congress’s intent in
enacting a statute to determine whether it would be appropriate to infer a right of action for the
party seeking to enforce it.” Am. Trucking Ass’n Inc. v. Del. River Joint Toll Bridge Comm’n, 458
F.3d 291, 296 (3d Cir. 2006). The Third Circuit employs a two-step inquiry for determining
whether a federal statute provides an implied private right of action: “(1) whether Congress
intended to create a personal right in the plaintiff; and (2) whether Congress intended to create a
personal remedy for that plaintiff.” McGovern v. City of Phila., 554 F.3d 114, 116 (3d Cir. 2009).
Because the Court holds that LCEC lacks a private right of action under the IDEA, the Court does not
address Defendants’ alternative argument that “LCEC’s appeal of its conditional approval status fails to
state a claim upon which relief can be granted under the IDEA.” (See Def. Mov. Br. at 18).
An affirmative answer to both prongs of the inquiry is required in order to hold that an implied
right of action exists in a federal statute. Id. Indeed, “[a] court may find an implied right of action
‘only where it can confidently conclude Congress so intended.’” Spencer Bank, S.L.A. v. Seidman,
528 F. Supp. 2d 494, 500 (D.N.J. 2008) (quoting Am. Trucking, 458 F.3d at 303).
In accordance with these principles, the Court first looks to the language of the IDEA to
determine whether the statute provides an express right of action for a PSSD to sue an SEA.
Express Right of Action
The IDEA guarantees that all disabled children are provided with a FAPE, 20 U.S.C.
§ 1412(a)(1)(A), and the statute “establishes an elaborate procedural mechanism to protect the
rights of those individuals.” Komninos., 13 F.3d at 778; see also S.N. v. Washington Twp. Bd. of
Educ., No. 11-3876, 2012 WL 4753428, at *1 (D.N.J. Sept. 27, 2012) (“Congress enacted the
IDEA as a means to ensure that states follow a mandate to provide a [FAPE] to all disabled
children.” (citing 20 U.S.C. § 1412(a)(1)(A))); Rancocas Valley Reg’l High Sch. Bd. of Educ. v.
M.R., 380 F. Supp. 2d 490, 496 (D.N.J. 2005) (“The express language of the IDEA exists to
guarantee that children with disabilities receive a [FAPE].”).
The IDEA contains no language expressly providing a PSSD with a private right of action
to enforce a child’s right to a FAPE. In fact, the language of the IDEA “strongly suggests that
Congress intended to provide a private right of action only to disabled children and their parents.”
Lawrence Twp. Bd. of Educ. v. New Jersey, 417 F.3d 368, 371 (3d Cir. 2005). Section 1415(a) of
the IDEA is entitled “establishment of procedures” and requires that procedures be established and
maintained “in accordance with this section to ensure that children with disabilities and their
parents are guaranteed procedural safeguards with respect to the provision of [a FAPE].” 20
U.S.C. § 1415(a) (emphasis added). Similarly, Section 1412(a)(6)(A) of the IDEA, which is
entitled “procedural safeguards,” sets forth that “[c]hildren with disabilities and their parents are
afforded the procedural safeguards required by section 1415.” 20 U.S.C. § 1412(a)(6)(A). Thus,
“the language in sections 1415 and 1412 explain that the procedural safeguards set forth in
section 1415, which include the right to file suit under 1415(i)(2), are specifically designed to
benefit disabled children and their parents.” S.C. v. Deptford Twp. Bd. of Educ., No. 01-5127,
2006 WL 1784591, at *6 (D.N.J. June 23, 2006); see also Rancocas, 380 F. Supp. 2d at 495 (stating
that § 1415(a) “connects the right to [a FAPE to] children with disabilities and their parents”).
The text and structure of Section 1415 further demonstrates that a PSSD does not have an
express right of action, as the procedural devices detailed in this section “all derive from the
premise that a disabled child and his/her parents should have access to procedures to enforce the
child’s right to a FAPE.” See Deptford, 2006 WL 1784591, at *6 (emphasis added). As noted
above, Sectio 1415(a) indicates that the procedures outlined in that section serve as safeguards to
protect a child’s right to a FAPE. 20 U.S.C. § 1415(a). Additionally, “section 1415(b), which sets
forth the types of procedures required, limits most relief under those procedures to the parents of
a disabled child.” Lawrence, 417 F.3d at 371. Among the procedures designed to protect a child’s
right to a FAPE is the opportunity to present a complaint “with respect to any matter relating to
the identification, evaluation, or educational placement of the child, or the provision of a [FAPE]
to such child.” 20 U.S.C. § 1415(b)(6)(A). Section 1415(f)(1), in turn, provides that, once a
complaint is filed pursuant to section 1415(b)(6), the parents in the complaint are entitled to “an
impartial due process hearing.” 20 U.S.C. § 1415(f)(1)(A). This hearing may occur “[i]f the local
educational agency has not resolved the complaint to the satisfaction of the parents.” 20 U.S.C.
§ 1415(f)(1)(B)(ii) (emphasis added).
As the district court explained in Rancocas, “when
Congress created the federal right to a FAPE it vested the right in children with disabilities and
gave the parents procedural devices to enforce their child’s rights. This structure simply does not,
at the same time, create a federal right in a LEA.” See Rancocas, 380 F. Supp. 2d at 495. Likewise,
the structure of section 1415 does not expressly create a private right of action in a PSSD.
Notably, the Third Circuit and several courts within this District have engaged in extensive
statutory analysis of the IDEA and held that even a local education agency (“LEA”) does not have
an express private right of action to sue the state under the IDEA. See, e.g., Lawrence, 417 F.3d
at 372 (holding that section 1415(b)(6), though “crafted more broadly than other subsections,” is
“at best ambiguous” and does not provide LEAs with express right of action against state);
Deptford, 2006 WL 1784591, at *5 (rejecting defendants’ interpretation of sections 1412 and 1415
and holding that “the language of those provisions is unclear at best and does not expressly provide
a local agency with the authority to sue a state agency under the IDEA”); Rancocas, 380 F. Supp.
2d at 495-96; accord Cnty. of Westchester v. New York, 286 F.3d 150, 152 (2d Cir. 2002) (“[T]he
text of the IDEA contains no language that explicitly provides a private right of action for Counties
to challenge the State’s compliance with its provisions.”); Andrews v. Ledbetter, 880 F.2d 1287,
1289 (11th Cir. 1989) (“[N]othing indicates that Congress intended to grant an LEA statutory
standing to bring suit to compel a state agency to fulfill its statutory duties.).
Based on the plain language and structure of the IDEA and a review of the relevant caselaw,
the Court concludes that the statute provides a limited express right of action that does not extend
to PSSDs. LCEC has not pointed to any language within the IDEA that confers an express private
right of action on a PSSD. Nor has LCEC provided any basis for the Court to conclude that the
Third Circuit’s statutory analysis of the IDEA in Lawrence is inapplicable with respect to a PSSD’s
express right of action under the IDEA. Therefore, the Court holds that LCEC does not have an
express right of action under the IDEA. Accordingly, the Court will assess whether LCEC has an
implied right of action under this statute.
Implied Right of Action
For similar reasons, LCEC does not have an implied right of action. As discussed above,
whether a federal statute confers an implied right of action is primarily a matter of Congressional
intent. Sandoval, 532 U.S. at 287; see also McGovern, 554 F.3d at 119 (stating that, in determining
whether an implied right of action exists, “Congressional intent [is] the ‘sole touchstone of our
inquiry’” (quoting Wisniewski, 510 F.3d at 303)). Although there is no prescribed test for
discerning Congressional intent, courts look at the text and structure of the relevant statute to
determine whether Congress intended to create a personal right and remedy in the plaintiff.
McGovern, 554 F.3d at 119.
In responding to Defendants’ motion to dismiss, LCEC does not address either prong of
the implied right of action test outlined by the Third Circuit. Instead, LCEC focuses its argument
on differentiating this case from Lawrence and the cases cited in Defendants’ brief. (Pl. Opp. Br.
at 15-16). LCEC contends that Lawrence is distinguishable because the LEA in that case sought
financial reimbursement from the state, whereas the present case involves a “controversy over a
particular child” and concerns LCEC’s ability to implement this child’s IEP. (Id. at 15) (internal
quotation marks omitted).
In declining to find that LEAs had an implied private right of action under the IDEA,
Lawrence and several other courts have taken note of the absence of a dispute about a child’s
educational needs. See, e.g., Lawrence, 417 F.3d at 371 (noting that the case was “not about a
child’s educational needs, but rather the [LEA]’s fiscal one” and “[a] budgetary dispute between
local and state agencies is simply not among the private actions contemplated by the IDEA”);
Deptford, 2006 WL 1784591, at *8 (“[T]he private right of action that [the LEA] is attempting to
assert is a funding disagreement between local and state agencies that is not entirely consistent
with the purpose of the IDEA.”); Rancocas, 380 F. Supp. 2d at 496 (quoting Lawrence and holding
that LEA did not have an implied right of action because the “matter [wa]s not about the ‘child’s
educational needs, but rather the Township’s fiscal ones’”); Asbury Park Bd. of Educ. v. Hope
Academy Charter Sch., 278 F. Supp. 2d 417, 422 (D.N.J. 2003) (holding no private right of action
existed for LEA absent an underlying dispute over a particular child).
However, it does not logically follow from this caselaw that a PSSD has an implied right
of action under the IDEA. For one thing, LCEC overstates the importance of the subject matter of
a party’s dispute in the calculus of whether an implied right of action exists. Courts that declined
to find an implied right of action for an LEA have treated the subject matter of the LEA’s dispute
as one of several factors that weighed against finding an implied right of action under the IDEA.
See Deptford, 2006 WL 1784591, at *8 (considering subject matter, Congressional intent, and the
language and structure of the IDEA); Rancocas, 380 F. Supp. 2d at 496 (considering subject
matter, Congressional intent, and statutory text); Asbury Park, 278 F. Supp. 2d at 422-23 (same).
Moreover, LEAs and PSSDs are distinct entities, and there is no reason to think that a PSSD has
an implied right of action against an SEA simply because there is a dispute over a child’s
educational needs. In New Jersey, the LEA where a disabled child is domiciled is charged with
the duty to provide a FAPE. N.J.A.C. §§ 6A:14-1.1(d), 6A:22-3.1(a); see also Lawrence, 417 F.3d
at 370 (citing N.J.A.C. § 6A:14-1.1(d) and noting that New Jersey vests LEAs “with the
responsibility for providing and administering a FAPE, in accordance with the requirements of the
IDEA”). LEAs play a critical role within the entire statutory scheme of the IDEA, given their
“non-delegable obligation” to ensure that no disabled child’s rights under the IDEA are infringed
upon. P.N. v. Greco, 282 F. Supp. 2d 221, 239 (D.N.J. 2003). By contrast, PSSDs enter the IDEA
statutory scheme only when a public agency places or refers a disabled child there, 20 U.S.C.
§ 1412(a)(10)(B)(i), or when parents enroll their child in the school, § 1412(a)(10)(A)(i). Even
where, as here, an LEA places a child at a PSSD pursuant to § 1412(a)(10)(B)(i), the SEA and
LEA still retain ultimate responsibility for ensuring that the PSSD is in compliance with the IDEA.
See § 1412(a)(10)(B)(ii) (providing that the SEA shall determine whether PSSDs meet standards
applicable to SEAs and LEAs); 34 C.F.R. §§ 300.146 (detailing the responsibilities of SEAs when
disabled children are placed in or referred to private schools by public agencies), 300.146 (same),
300.325 (“Even if a private school or facility implements a child’s IEP, responsibility for
compliance with [development and review of IEPs] remains with the public agency and the
Additional factors weigh heavily against finding that LCEC has an implied right of action
to bring suit under the IDEA. First, the Third Circuit’s holding that the IDEA’s language “strongly
suggests that Congress intended to provide a private right of action only to disabled children and
their parents,” Lawrence, 417 F.3d at 371, applies with equal force to the Court’s implied right of
action analysis. See Rancocas, 380 F. Supp. 2d at 496 (explaining that the Third Circuit’s
congressional intent analysis in Lawrence was “particularly compelling” in determining that LEA
had no implied right of action). Notably, parents retain their ability to enforce their child’s rights
under the IDEA regardless of whether their child is placed at a public or private school. Thus, the
primary goal of the IDEA—i.e., that all disabled children receive a FAPE—can be effectuated by
parents regardless of the type of school in which a disabled child is placed. Second, LCEC is not
alleging a systemic violation of the IDEA, nor does it purport to bring an action “on behalf of
disabled students and their parents, who do have a private right of action under . . . the IDEA.” Cf.
N.J. Prot. & Advocacy, Inc. v. N.J. Dep’t of Educ., 563 F. Supp. 2d 474, 488 n.3 (D.N.J. 2008)
(emphasis added) (holding that statewide advocacy organizations had private right of action under
the IDEA because suit was brought on behalf of all disabled children and their parents and
organizations thus had representational standing).
Rather, LCEC’s allegations focus on
Defendants’ regulation of the school, and LCEC has not pointed to any authority that a PSSD has
an implied right of action in such a context.
The Court concludes that LCEC does not have an implied right of action under the IDEA.
Because LCEC has neither an implied nor an express right of action, the Court dismisses Count
Two of Plaintiffs’ Complaint. Since “granting leave to amend would be futile in the absence of a
private right of action,” the Court dismisses Count Two with prejudice. See Paredes v. Sallie Mae,
No. 11-2470, 2011 WL 5599605, at *5 (D.N.J. Nov. 16, 2011) (dismissing plaintiff’s claims with
prejudice due to the absence of a private right of action).
In the alternative, Defendants argue that, if the Court finds that Plaintiffs have stated a valid
claim, it should nevertheless abstain from hearing the matter because the claims can be resolved
through state proceedings. (Def. Mov. Br. at 29-33). However, as the Third Circuit has stated,
“the administrative process [in the instant case] would be unable to grant relief.” D.M., 2015 WL
5255088, *4. Accordingly, there is no state proceeding that would compel the Court to abstain.
Therefore, the Court declines Defendants’ request.
For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’
motion to dismiss. An appropriate Order accompanies this Opinion.
s/ Esther Salas
Esther Salas, U.S.D.J.
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