UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIAN SCHAFFER, a minor, by his
parents and next friends, Jocelyn
and Martin Schaffer; JOCELYN
SCHAFFER; MARTIN SCHAFFER,
Plaintiffs-Appellees,

v.

PAUL VANCE, officially as
Superintendent; BOARDOF
                                                               No. 00-1471
EDUCATIONOF MONTGOMERY
COUNTY,
Defendants-Appellants.

MARYLAND ASSOCIATIONOF
BOARDSOF EDUCATION; NATIONAL
SCHOOL BOARDS ASSOCIATION; UNITED
STATESOF AMERICA,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-99-15-PJM)

Argued: December 4, 2000

Decided: January 10, 2001

Before WILKINSON, Chief Judge, and LUTTIG and
MICHAEL, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Zvi Greismann, MONTGOMERY COUNTY PUBLIC
SCHOOLS, Rockville, Maryland, for Appellants. Michael Jeffrey
Eig, MICHAEL J. EIG & ASSOCIATES, P.C., Washington, D.C.,
for Appellees. ON BRIEF: Eric B. Schwartz, Deputy Executive
Director, MARYLAND ASSOCIATION OF BOARDS OF EDUCA-
TION, Annapolis, Maryland; Julie K. Underwood, General Counsel,
NATIONAL SCHOOL BOARDS ASSOCIATION, Alexandria, Vir-
ginia, for Amici Curiae Boards. Bill Lann Lee, Assistant Attorney
General, David K. Flynn, Teresa Kwong, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Judith A. Win-
ston, General Counsel, Kala Shah Surprenant, UNITED STATES
DEPARTMENT OF EDUCATION, Washington, D.C., for Amicus
Curiae United States.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This case arises in the context of the formulation of an individual-
ized education plan (IEP) under the Individuals with Disabilities Edu-
cation Act (IDEA). 20 U.S.C. § 1411 et seq. The parents of Brian S.
believed the IEP formulated by the Montgomery County Public
School system (MCPS) would not have provided Brian with a free
appropriate public education (FAPE) for the 1998-1999 school year.
Accordingly, Brian's parents enrolled him in a private school and
then initiated a due process hearing to obtain tuition reimbursement
from MCPS. The Administrative Law Judge (ALJ) initially denied the
relief requested, concluding that the IEP offered by MCPS would
have provided Brian with a FAPE. Central to the ALJ's decision,
however, was the conclusion that Brian's parents had the burden of
proving that MCPS's IEP would not have provided a FAPE to their
son.

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Brian's parents appealed the ALJ's decision to the district court.
The district court granted their motion for summary judgment and
issued an opinion reallocating the burden of proof to MCPS. Brian S.
v. Vance, 86 F.Supp 2d 538 (D. Md. 2000). The case was remanded
to the ALJ in light of the new allocation of the burden of proof.
MCPS appealed the district court's decision. The sole issue currently
on appeal before this court, therefore, is that of who bears the burden
of proof at an initial IEP hearing.

After briefs had been filed but prior to argument before this court,
the ALJ revisited the claims made by Brian's parents. Even though
the question was the subject of the pending appeal, the ALJ applied
the district court's revised burden of proof scheme. After making 82
detailed findings of fact, the ALJ concluded that MCPS's proposed
IEP would not have provided Brian with a FAPE. The ALJ found that
Brian had a "central auditory processing" problem and that MCPS's
plan failed to address this concern. The ALJ also concluded, however,
that while Brian's parents were entitled to reimbursement under Bur-
lington School Committee v. Department of Education of Massachu-
setts, 471 U.S. 359 (1985), and Florence County School District Four
v. Carter, 510 U.S. 7 (1993), they never seriously contemplated plac-
ing Brian in a public school. According to the ALJ, no IEP that
MCPS could have proposed would have kept Brian out of private
school. Thus, the ALJ granted reimbursement of only one half of the
tuition paid for Brian's private education during the 1998-1999 school
year.

In light of this development, we vacate the decision of the district
court and remand to that court with directions that any issue with
respect to the proof scheme in this case be consolidated with the con-
sideration on the merits. At this stage, it remains unclear what role,
if any, the allocation of the burden of proof will have on the final
adjudication of Brian's claim. Moreover, there may well be cross-
appeals of the ALJ's decision since neither party prevailed fully at the
hearing stage. If this court is to address the issue of who has the bur-
den of proof in challenging an initial IEP, it should be in the context
of a matured case or controversy rather than in the piecemeal fashion
in which this case now appears before us. Accordingly, the judgment
of the district court is vacated and remanded for further proceedings
consistent with this opinion.

VACATED AND REMANDED

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