
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                                         -3-                                          3        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                                         -4-                                          4        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                                         -5-                                          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                                         -6-                                          6        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                                                                           ___                                         -7-                                          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).        _______________                                         -8-                                          8            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.                                         -9-                                          9            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.                                         -10-                                          10        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,                                         -11-                                          11        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.            ____________________                                         -12-                                          12
