
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 93-1828                            KEVIN W. MURPHY, ETC., ET AL.                                Plaintiffs, Appellees,                                          v.                         TIMBERLANE REGIONAL SCHOOL DISTRICT,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Shane Devine, Senior U.S. District Judge]                                       __________________________                                                                                      ____________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Gerald M. Zelin,  with whom  Diane M. Gorrow  and Soule,  Leslie,             _______________              _______________      _______________        Zelin, Sayward and Loughman were on brief for appellant.        ___________________________             Ellen  J.   Shemitz,  with   whom  Michael  R.   Chamberlain  and             ___________________                _________________________        Chamberlain and Connor were on brief for appellees.        ______________________                                                                                      ____________________                                    April 28, 1994                                                                                      ____________________                    CYR,  Circuit  Judge.    Plaintiffs-appellees  Kevin W.                    CYR,  Circuit  Judge.                          ______________          Murphy  (Kevin) and  his  parents, Janice  and  Kevin C.  Murphy,          brought  this  action  under  the  Individuals with  Disabilities          Education  Act  (IDEA),  20  U.S.C.   1400  et  seq.,1  to compel                                                      __  ____          defendant-appellant Timberlane Regional School  District (Timber-          lane)  to  provide  Kevin  with compensatory  education  for  the          two-year period during which  he received no educational services          due to the  failure of the  parties to agree upon  an appropriate          individual educational plan (IEP).  The district court ultimately          granted  summary  judgment  against  Timberlane,  and  Timberlane          appealed.  We affirm the district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    After  incurring an  accident-induced disability  at an          early age, Kevin was determined a disabled individual entitled to          special  educational services  under  the IDEA.2   Several  years                                        ____________________               1The  IDEA  formerly  was  known as  the  Education  of  the          Handicapped Act. See Pub.  L. 102-119,   25(b), Oct 7,  1991, 105                           ___          Stat. 607 (substituting  "Individuals with Disabilities Education          Act" for "Education of the Handicapped Act").               2We relate only the background necessary to an understanding          of this appeal.   For  greater detail, see  Murphy v.  Timberlane                                                      ______     __________          Regional Sch. Dist., 973 F.2d 13, 14-15 (1st Cir. 1992) (vacating          ___________________          summary judgment against the Murphys) ("Murphy I").                                                  ________               As the court explained in Murphy I:                                         ________                    [The  IDEA]  requires  . . . participating  states               [to]  adopt policies  assuring  all students  with dis-               abilities  the  right  to a  "free  appropriate  public                                          2          later, the Murphy family moved to Plaistow, New Hampshire,  which          is within the Timberlane Regional  School District.  In September          1981, Timberlane placed Kevin in a special educational program at          Charlotte Avenue  School, a  public elementary school  in Nashua,          New  Hampshire.   Although Kevin's  parents originally  agreed to          this placement, they soon  expressed concerns to his teacher  and          to Timberlane's special education  administration that Kevin  was          regressing academically.  In  December 1981, after Kevin suffered                                        ____________________               education."   20 U.S.C.    1412(1).  New  Hampshire has               adopted the required  policies and  attempts to  comply               with the requirements of the Act.                    As defined  by [the  IDEA], the term  "free appro-               priate public  education" refers to  the special educa-               tion  and related  services  that must  be provided  in               conformity  with  an  individualized education  program               (IEP).   20 U.S.C   1401(a)(20).  An IEP is a statement               of the  educational program  which must be  written for               each  child and  designed to  meet each  child's unique               needs.   20 U.S.C   1401(a) (19).  The IEP is developed               by a  team including a qualified  representative of the               local educational  agency, the teacher, the  parents or               guardian, and,  where appropriate,  the  student.   Id.                                                                   ___               . . .  An  IEP is  appropriate under [the  IDEA] if  it               provides  instruction  and support  services  which are               reasonably calculated to confer educational benefits to               the  student.  Board  of Education v.  Rowley, 458 U.S.                              ___________________     ______               176, 203-207  (1982); Abrahamson v.  Hershman, 701 F.2d                                     __________     ________               223, 226-27 (1st Cir. 1983).                    [The  IDEA] further  requires states  to establish               and maintain certain procedures  "to assure that  chil-               dren  with disabilities and  their parents or guardians               are  guaranteed procedural  safeguards with  respect to               the  provision of  free appropriate  public education."               20 U.S.C.   1415(a).  Parents  who believe that a  pro-               posed IEP is inappropriate are entitled to an impartial               due  process hearing.    20 U.S.C.    1415(b)(2).   Any               party  aggrieved by  the decision of the administrative               hearing officer  may appeal to either  state or federal               court.  20 U.S.C.   1415(e)(2).          Murphy I, 973 F.2d at 14.          ________                                          3          a  seizure at  home, his  parents  decided not  to return  him to          school.   Kevin received no educational  services from Timberlane          between January  1982 and January  1984, the  two-year period  to          which  the compensatory  education claim  at issue  in  this case          relates.  Finally, in  January 1984, after a great  many meetings          and an  abortive truancy  proceeding against Kevin's  father, the          parties came to  an agreement on  Kevin's placement at  Pinkerton          High School, where he remained through the 1988-89 school year.3                    In the  fall of 1988,  Mr. Murphy and  Timberlane offi-          cials had discussions concerning continuation  of Kevin's special          education beyond his twenty-first birthday  on July 9, 1989.  Mr.          Murphy later  signed Kevin's  1988-89 IEP with  the understanding          that Kevin would be  provided special educational services beyond          age  twenty-one.   On  January 5, 1989,  however, the  Timberlane          school board rejected a  request by the Timberlane superintendent          to fund continued special education for Kevin.  On July 24, 1989,          shortly  after  Kevin's  twenty-first  birthday,  George  Wright,          Timberlane's representative  on  Kevin's IEP  team, notified  the          Murphys  that Kevin  would be discharged  as a  special education          student.                    Kevin is  now twenty-five years  of age  and no  longer          entitled to a free public education under New Hampshire law.  See                                                                        ___          N.H. Rev. Stat. Ann.   186-C:9 (disabled "child shall be entitled          to  continue in an approved program until  such time as the child                                        ____________________               3Although  briefly  placed  in  two  different  schools  for          evaluation, in June 1982 and October-November 1983, Kevin was not          returned to a permanent educational setting until January 1984.                                          4          has acquired a high school diploma or has attained the age of 21,          whichever occurs first");  see also id.   186-C:2  (similar).  In                                     ___ ____ ___          August 1989, less than one month after Kevin had been discharged,          the  Murphys requested  an administrative  hearing.   The Murphys          maintained that  Kevin was entitled  to compensatory  educational          services beyond  age twenty-one as a  consequence of Timberlane's          failure to  provide special education during  the two-year period          from January 1982 through January 1984.  The Murphys specifically          alleged that Timberlane  had violated the IDEA  by failing either          to  propose an  IEP acceptable  to  all IEP  team  members or  to          initiate administrative proceedings to resolve the IEP impasse in          accordance with N.H. Code Admin. R. Ed. 1125.01(b)(3)-b ("section          1125").4                    The administrative hearing officer determined  that the          Murphys' claim  for compensatory educational services  was barred          by laches.  The United States  District Court for the District of          New Hampshire  granted summary  judgment in favor  of Timberlane,          affirming the  administrative decision.  We  vacated the district                                        ____________________               4Section 1125 states:                If the parent(s) inform the district of their disagree-               ment, or if  they fail  to make a  decision within  the               specified time  frame, it shall be  interpreted as dis-               agreement with  the decision or action  proposed by the               local  school  district's  Special   Education  Evalua-               tion/Placement  Team.  If  the  Local  Education Agency                                      __  ___  _____  _________ ______               feels its action or decision should, in the best inter-               _____ ___ ______ __ ________ ______               ests of  the student, be implemented,  the Local Educa-                                     __ ___________   ___ _____ ______               tion Agency shall initiate its  right of due process as               ____ ______ _____ ________ ___  _____ __ ___ _______               specified  in the Complaint  and Impartial  Due Process               Hearing Procedures  Section of the Standards  to obtain               the  authority  to  implement  its  decision. (emphasis               added).                                          5          court decision and remanded for further findings relating to  the          laches defense.   Murphy I,  973 F.2d  at 18.   On remand,  after                            ________          receiving evidence  and argument on  both the laches  defense and          the  cross-motions  for  summary  judgment,  the  district  court          rejected  Timberlane's  laches  defense,  denied  its  motion for          summary judgment based on  a statute of limitations defense,  and          granted summary judgment for  the Murphys.  Murphy  v. Timberlane                                                      ______     __________          Regional Sch.  Dist., 819  F. Supp. 1127  (D.N.H. 1993)  ("Murphy          ____________________                                       ______          II").  Timberlane appeals the district court order.          __                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Laches          A.  Laches              ______                    When Timberlane's laches defense was before us in 1992,          we  explained  that "[t]he  equitable  doctrine of  laches  is an          affirmative defense that serves as a bar to a claim for equitable          relief  'where a party's delay in bringing suit was (1) unreason-          able,  and (2)  resulted in  prejudice to  the  opposing party.'"          Murphy I, 973 F.2d at 16 (quoting K-Mart Corp. v. Oriental Plaza,          ________                          ____________    _______________          Inc., 875  F.2d 907, 911  (1st Cir. 1989)).   We went on  to hold          ____          that "the  Murphys' delay in  filing their claim  was not so  un-          reasonable  as to  make the  laches  defense available  without a                                                                  _______ _          clear showing of prejudice."   Id. (emphasis added).   On remand,          _____ _______ __ _________     ___          the  district court  found  that  the  delay had  not  prejudiced          Timberlane's  ability  to present  its case  as  a result  of the          unavailability  or failed memories of key  witnesses.  Murphy II,                                                                 _________          819 F. Supp. at 1133.  Our review reveals no  abuse of discretion                                          6          by the district court.  See K-Mart Corp., 875 F.2d at 911.5                                  ___ ____________                    Timberlane represented to the district court that "most          of the primary actors" from the relevant period were unavailable,          and  that  the  "memories  of  critical  witnesses  had  failed."          However,  two of  these  "primary" witnesses  (Kevin's  teachers:          Martha Kadel and Claudia  Libis) testified at the district  court                                           _________          hearing.  A third  key witness, Nikolas Sarbanis,  resides within          the  reach of the district court's subpoena power, yet Timberlane          did not produce  him.  Timberlane rested  its "prejudice" showing          relating  to  the  other  "primary"  witness,  former  Timberlane          Superintendent Robert Crompton, solely on its  unsupported asser-          tion that  he  was  unavailable.   The  district  court  received          testimony, however, that Crompton resides in Florida, and Timber-          lane  made no proffer  that he was either  unable or unwilling to          testify.   See Hoover v.  Department of Navy,  957 F.2d 861,  864                     ___ ______     __________________          (Fed. Cir. 1992)  (noting that "prejudice"  showing must be  sup-          ported by  "substantial evidence" and holding,  on similar facts,          that this burden "is not  met simply by showing that  a potential          witness has retired"  outside the subpoena  power of the  court.)          Moreover, Timberlane did not assert,  let alone show, that Cromp-          ton's testimony would not be available by deposition.  See, e.g.,                                                                 ___  ____          Fairfield  274-278 Clarendon Trust v.  Dwek, 970 F.2d 990, 994-95          __________________________________     ____                                        ____________________               5Because the district court conducted  a preliminary hearing          at which the parties  were allowed to present evidence,  see Fed.                                                                   ___          R.  Civ.  P.  12(d), "abuse  of  discretion"  is the  appropriate          standard of review, see Rivera-Gomez v. de Castro, 900 F.2d 1, 2-                              ___ ____________    _________          3  (1st  Cir.  1990),  notwithstanding that  the  laches  defense          originally was raised on motion for summary judgment.                                              7          (1st Cir. 1992) (explaining  requirements for the introduction of          deposition testimony when witnesses  are unavailable, pursuant to          Fed. R. Civ. P. 32(a)(3)).                    The  district court further  found that  Timberlane had          failed to take reasonable steps to refresh its witnesses:                    At   the   [district  court]   hearing,  [six                    Timberlane  witnesses]   testified  on  . . .                    direct  examination  as to  aspects  of their                    involvement  with  Kevin's special  education                    program which  they could  not remember.   On                    . . . cross-examination   [by   the  Murphys'                    counsel],  however,  each  acknowledged  that                    [Timberlane]  had  not  shown  them  relevant                    documents  contained in  the  record  of  the                    instant case, such as transcripts of signifi-                    cant meetings concerning Kevin.          Murphy II, 819 F. Supp. at 1133.            _________                    After  reviewing the  entire  hearing  transcript  with          care, we are persuaded that  the rejection of Timberlane's  claim          of prejudice was well  within the district court's sound  discre-          tion.   See  K-Mart Corp., 875  F.2d at  912; see  also Kersey v.                  ___  ____________                     ___  ____ ______          Dennison Mfg.  Co., 3 F.3d  482, 486  (1st Cir.  1993) (abuse  of          __________________          discretion occurs "'when a  relevant factor deserving of signifi-          cant weight is overlooked, or when an improper factor is accorded          significant weight,  or when the court  considers the appropriate          mix  of  factors, but  commits a  palpable  error of  judgment in          calibrating the  decisional scales.'") (quoting United  States v.                                                          ______________          Roberts, 978 F.2d 17, 21 (1st Cir. 1992)) (citations omitted).          _______          B.   The Timberlane Motion for Summary Judgment          B.   The Timberlane Motion for Summary Judgment               __________________________________________                    Following  the   evidentiary  hearing  on   its  laches          defense, Timberlane moved for summary judgment on the ground that                                          8          the present action is time-barred.  Reasoning from the absence of          an  express limitation  provision in  both the  IDEA and  the im-          plementing New Hampshire statute, see N.H. Rev. Stat. Ann.   186-                                            ___          C,6  the district court ruled  that laches alone  could provide a          temporal limitation on the Murphys' compensatory education claim.          Murphy II, 819 F. Supp. at  1132.  We conclude that the compensa-          _________          tory education claim was not time-barred  under the New Hampshire          limitation provision  appropriate for "borrowing" in  the present          case.  See Garside v. Osco Drug,  Inc., 895 F.2d 46, 49 (1st Cir.                 ___ _______    ________________          1990)  ("court of appeals [may] affirm a judgment on any indepen-          dently sufficient ground").               (i) The "Borrowing" Methodology               (i) The "Borrowing" Methodology                   ___________________________                    The Supreme Court has described the federal "borrowing"          praxis  in broad terms:   "[w]hen Congress has  not established a          time  limitation  for a  federal  cause  of action,  the  settled          practice has been to adopt a local time limitation as federal law          if  it is not inconsistent with federal  law or policy to do so."          Wilson  v. Garcia, 471 U.S.  261, 266-67 (1985)  (  1983 action).          ______     ______          See  also Campbell v. Haverhill, 155 U.S. 610, 616 (1895) (absent          ___  ____ ________    _________          federal limitation,  congressional intent  is best served  if the          federal  right is "enforced in the manner common to like actions"          under state law); Rowlett v.  Anheuser-Busch, Inc., 832 F.2d 194,                            _______     ____________________          198 (1st Cir. 1987) (borrowing N.H. RSA   508:4 six-year  limita-                                        ____________________               6New  Hampshire  has  since  adopted  a  limitations  scheme          specifically applicable  to special  education claims.   See N.H.                                                                   ___          Rev. Stat. Ann.   186-C:16-b (effective June 30, 1992).                                          9          tion on "personal actions" for application to   1981 action).  In          selecting  the appropriate  state  limitation,  Campbell and  its                                                          ________          progeny require the borrowing court to balance both the interests          of the  parties  and  the legislative  goals  of  the  particular          federal statute.  See Amann v. Town of Stow, 991 F.2d 929, 931-33                            ___ _____    ____________          (1st  Cir.  1993)  (borrowing  administrative  review  limitation          period  after balancing  three  IDEA policy  goals: the  parental          interest  in  participation,  the  school's  interest  in  speedy          resolution  of disputes,  and the  child's interest  in receiving          educational  entitlement).    Similarly,  the Sixth  Circuit  has          observed that:                    [T]he nature  of actions that  can be brought                    under the [IDEA] as well as the Act's goal of                    proper  education  of  the handicapped  child                    make  the  selection  of   state  limitations                    periods   on   a   case-by-case    basis   an                    imperative.   The  individual  case  must  be                    characterized by considering  the facts,  the                    circumstances,  the posture  of the  case and                    the legal theories presented.          Janzen v. Knox County Bd.  of Educ., 790 F.2d 484, 487  (6th Cir.          ______    _________________________          1986) (citation omitted); see  Bow Sch. Dist. v. Quentin  W., 750                                    ___  ______________    ___________          F. Supp. 546, 549  (D.N.H. 1990) (similar) (Stahl, J.);  see also                                                                   ___ ____          Tokarcik v.  Forest Hills Sch. Dist., 665  F.2d 443, 449 (3d Cir.          ________     _______________________          1981) ("Ultimately, we must be guided by the aim of the [IDEA] in          devising the limitation period  in issue here.  If  state limita-          tions law  conflicts with federal procedural  safeguards embodied          in  [the  IDEA], the  federal  concerns  are paramount."),  cert.                                                                      _____          denied, 458 U.S. 1121 (1982).          ______               (ii) The Compensatory Education Claim               (ii) The Compensatory Education Claim                    ________________________________                                          10                    First, we must attempt  to "characterize the essence of          the claim in  the pending  case, and decide  which state  statute          provides the most  appropriate limiting  principle." Wilson,  471                                                               ______          U.S. at 268.   The present IDEA claim seeks  to vindicate Kevin's          "right to a free appropriate public education," 20 U.S.C.   1412-          (1);  see also  20 U.S.C.    1412(2)(b), based on  the contention                ___ ____          that Kevin was  deprived of  educational services  for two  years          while  Timberlane, contrary  to its  mandated duty  under section          1125,  failed  to  resort  to the  New  Hampshire  administrative          process to resolve the impasse between Timberlane and the Murphys          as to what constituted  an "appropriate education." See generally                                                              ___ _________          Honig v. Doe,  484 U.S.  305, 310 (1988)  (finding IDEA  "confers          _____    ___          upon disabled children an enforceable substantive right to public          education").  The Murphys request equitable relief in the form of          an  injunction compelling  Timberlane to  provide Kevin  with two          years of compensatory special education.                    The  peculiar  procedural warp  presented in  this case          seems  to us  sufficiently  important to  qualify  as a  defining          feature  of the limitation to be borrowed from New Hampshire law.          The administrative  hearing  officer  initially  ruled  that  the          Murphys' hearing  application was timely under  the New Hampshire          statute of  limitations governing "personal actions"  in general,          see  N.H. Rev. Stat. Ann.   508:4, and therefore that the compen-          ___          satory education claim should be addressed on the merits.  Later,          on reconsideration, the hearing  officer ruled that the compensa-          tory education claim was  barred by laches.  The  Murphys filed a                                          11          timely  appeal  to the  district  court  from the  administrative          ruling  on laches  pursuant to  20 U.S.C.    1415(e)(2), and  the          district  court upheld the administrative ruling.   On appeal, we          vacated the district  court decision and remanded to the district          court for further proceedings.  Murphy I, 973 F.2d at 18.                                          ________                    The district court  convened an evidentiary  hearing on          laches,  and presumably in light of the circumstances of the case              Kevin was  approaching his  mid-twenties  by this  point, the          litigation had been  pending for  more than three  years, and  an          extensive  district  court evidentiary  record  had  already been          generated     the district court  decided to adjudicate  the Mur-                        ___ ________ _____  _______ __ __________  ___ ____          phys'  compensatory education  claim  on the  merits rather  than          _____  ____________ _________  _____  __ ___  ______          remand  to the  administrative hearing  officer.   See  20 U.S.C.                                                             ___            1415(e)(2) (courts  sitting in review of administrative rulings          may supplement the hearing record with additional evidence); Pihl                                                                       ____          v. Massachusetts Dept. of Educ., 9  F.3d 184, 191 (1st Cir. 1993)             ____________________________          (remand  to administrative  hearing officer  may not  be required          where the record contains  sufficient factual development and the          "peculiar  expertise"  of a  hearing  officer  is not  required).          Neither party  opposed the  district court's decision  to address          the merits.   Thus, the  instant appeal  challenges the  district          court  order allowing  the  compensatory education  claim on  the          merits.                    This  tortuous  procedural  trail  is material  to  the          present  inquiry in at least two significant respects.  First, in          contradistinction to  the "typical"  IDEA action, this  case does                                          12          not concern the appropriate limitation to be applied to an appeal          from a  state administrative ruling  to a federal  district court          under  20 U.S.C.   1415(e)(2), but to the initiation of a request          for an  "impartial due  process" administrative hearing  under 20          U.S.C.   1415(b)(2) in the first instance.  Compare, e.g., Amann,                              __ ___ _____ ________   _______  ____  _____          991 F.2d  at 933-34  (importing 30-day limitation  from Massachu-          setts Administrative  Procedure Act  in   1415(e)(2) case);  Bow,                                                                       ___          750 F. Supp. at  550-51  (similar, applying 30-day  New Hampshire          administrative  review limitation).7    Second,  we believe  that          several factors which militate in favor of borrowing an  abbrevi-          ated  limitation period  for  application in  the  context of  an          appeal from an administrative ruling under section 1415(e)(2) are          inapposite in the present  context.  For instance, where  a party          seeks  administrative review in  order to resolve  an ongoing IEP                                                                _______          impasse, the need for  a speedy resolution securing the  eligible                                   ______          child's IDEA entitlement  at the earliest  possible time must  be          considered  a dominant IDEA policy objective.  Amann, 991 F.2d at                                                         _____          932.  The present action, on the other hand, concerns a claim for          compensatory education  based exclusively on a  course of conduct          already concluded, and thus does not implicate an equivalent need                  _________          for urgent administrative intervention.  Furthermore, whereas the          limitation borrowed in this case will govern whether the Murphys'                                        ____________________               7The thirty-day  limitation borrowed in Bow  appears to have                                                       ___          been supplanted by a  newly enacted limitation scheme, applicable          exclusively in the special education  context.  The new provision          prescribes  a  120-day limitation  on  any "appeal  from  a final          administrative  decision  in  a  special  education  due  process          hearing to a court  of competent jurisdiction."  N.H.  Rev. Stat.          Ann.   186-C:16-b IV.                                          13          compensatory  education  claim  can  ever be  considered  by  any                                                                    __  ___          tribunal in the first instance,  in a section 1415(e)(2) proceed-          ________ __ ___ _____ ________          ing  the  district court  normally  functions  something like  an          appellate court reviewing  a state agency decision on the merits.          Bow, 750 F.  Supp. at 549.  Consequently, the  statute of limita-          ___          tions defense interposed by  Timberlane would not merely preclude          a judicial "second look" at an adverse administrative ruling, but          foreclose any ruling, administrative or judicial, on Timberlane's                    ___ ______  ______________ __ ________          legal  responsibility for  the  otherwise irretrievable  two-year          IDEA educational entitlement denied Kevin.                    Thus,  the broad equitable  considerations and finality          concerns generated  by  the  present  action     where  absent  a          compensatory  education award there can be no "next year" for the          disabled individual no longer  eligible for free public education             are not ordinarily involved in an appeal to the district court          under  section 1415(e)(2).  Compare Amann, 991 F.2d at 933 (hold-                                      _______ _____          ing short limitation period  appropriate, in part because parents          can always contest next year's proceedings if need be).  We think                             ____ ______          these  considerations bear out the view endorsed by the Bow court                                                                  ___          that  "[n]othing  prevents  different  provisions  of  a  federal          statute  from being  characterized  differently  for  statute  of          limitation purposes."  Bow,  750 F. Supp. at 549,  citing Wilson,                                 ___                         ______ ______          471  U.S. at 268.   Under  the required  "borrowing" methodology,          therefore, we weigh the  federal interests manifest in the  IDEA,          the state and school district interests implicit in section 1125,          and  the interests of the learning disabled pupil and his family,                                          14          all in  light of the particular procedural  posture and equitable          considerations disclosed in the present record.               (iii)  The Appropriate New Hampshire Limitation               (iii)  The Appropriate New Hampshire Limitation                      ________________________________________                    Timberlane advocates borrowing the four-year limitation          applicable  to "Actions  to  Recover For  Bodily Injury"  against          local governmental  units, including school districts.   See N.H.                                                                   ___          Rev. Stat. Ann.   507-B:7  ("RSA 507-B:7") (amended to three-year          period, effective  in actions  arising after  May 17, 1989).   An          alternate candidate  is the New Hampshire  statute of limitations          which  formerly  prescribed  a six-year  limitation  on "personal          actions"  accruing prior to July 1,  1986.  N.H.  Rev. Stat. Ann.            508:4 ("RSA 508:4") (amended to three-year period, effective in          actions arising after  July 1, 1986).   As the  present cause  of          action accrued before RSA 508:4 and RSA 507-B:7 were amended, see                                                                        ___          infra p. 21, the pre-amendment versions govern.  See Gonsalves v.          _____                                            ___ _________          Flynn,  981 F.2d 45, 47-48  (1st Cir. 1992)  (noting that federal          _____          "borrowing" court  will respect  state law provision  prescribing          exclusively  prospective  application of  amendatory limitation),          citing  Kadar Corp. v.  Milbury, 549 F.2d 230,  234 n.3 (1st Cir.          ______  ___________     _______          1977).                    We  think it clear that  RSA 507-B:7 does  not meet the          threshold  "like action"  test, see  Campbell, 155  U.S. at  616,                                          ___  ________          because it applies only in actions "to recover for bodily injury,          personal injury, or property damage caused by" fault attributable          to a governmental unit.  N.H. Rev. Stat. Ann.   507-B:2.  The New          Hampshire Supreme Court has observed:  "Taken as a whole, the law                                          15          [RSA 507:B]  seems designed to limit  municipal liability arising          from  tort suits  and related  personal property  claims . . . ."          Cannata  v. Deerfield, 566  A.2d 162, 167 (N.H.  1989).  The Mur-          _______     _________          phys' compensatory education  claim, on the  other hand, is  pre-          mised  on  allegations  that  Timberlane  denied  Kevin's federal          statutory  rights by  withholding all special  education services          for a  two-year period in violation of the IDEA and section 1125,          the New Hampshire implementing regulation.8                    Moreover, certain extraordinary characteristics  of the          present compensatory education claim point up the appropriateness          of the New Hampshire catch-all limitation applicable to "personal          actions"  generally.  Prior to  its amendment in  1986, RSA 508:4          stated:    "Except as  otherwise  provided by  law,  all personal                      ______ __  _________  ________ __  ___          actions, except actions for slander or libel, may be brought only          within 6  years of the  time the cause  of action accrued."   Al-          though  we have found no precise definition of the term "personal          actions," the New Hampshire Supreme Court often has described RSA          508:4 as a "general statute  of limitations," see, e.g., Petition                                                        ___  ____  ________          of Keene Sentinel, 612 A.2d 911, 914 (N.H. 1992); Clark v. Exeter          _________________                                 _____    ______          Co-operative  Bank,  344 A.2d  5, 5  (N.H.  1975).   Further, the          __________________          opening proviso     "[e]xcept as  otherwise provided  by law"                                            ____________________               8Even  if the  present claim  were somehow  considered tort-          based,  the required  "borrowing" methodology does  not encourage          recourse to state limitations tailored to curtail public liabili-          ty.   See, e.g., Wilson, 471  U.S. at 279 (noting,  in context of                ___  ____  ______            1983 action, that "the  very ineffectiveness of state remedies"          may  have  motivated Congress  to  impose  a federal  enforcement          scheme  against  state actors);  cf.  Rowlett,  832  F.2d at  198                                           ___  _______          (borrowing N.H. RSA 508:4 for   1981 claim).                                          16          strongly suggests that RSA  508:4 is meant  to serve as a  "back-          stop"  limitation on  civil  actions not  governed  by some  more          particular  limitation.   Compare,  e.g.,  N.H.  Rev. Stat.  Ann.                                    _______   ____            507-C:4 (providing two-year limitation on actions  for "medical          injury"); N.H.  Rev. Stat. Ann.    508:4-B (providing  eight-year          limitation on actions for "damages from construction").                    As an  IDEA-based claim  for compensatory education  is          similar to a civil rights action, the "borrowing" praxis also may          be informed  by relevant principles  developed in the  context of          civil  actions under  42 U.S.C.     1981 and  1983.   The Supreme          Court  has identified  a general  preference for  borrowing state          limitations governing  personal injury actions,  Wilson, 471 U.S.                                                           ______          at  279 (  1983 action), in  part because "[i]t  is most unlikely          that  the period  of limitations  applicable to  [personal injury          actions] ever  was, or ever would  be, fixed in a  way that would          discriminate  against federal  claims,  or  be inconsistent  with                                                  __  __ ____________  ____          federal  law in any respect."   Id. (emphasis added).  Under this          _______  ___ __ ___ _______     ___          criterion, as between RSA 507-B:7 and RSA 508:4    the statute of          limitations  governing personal  actions  generally     RSA 508:4          presents the more analogous New Hampshire statute under the "like          action"  test established in Campbell, 155 U.S. at 616, hence the                                       ________          more appropriate for  application to the IDEA claim for compensa-          tory education in the present case.9  Cf. Lillios v. Justices  of                                                ___ _______    ____________                                        ____________________               9See James v.  Nashua Sch.  Dist., 720 F.  Supp. 1053,  1058                ___ _____     __________________          (D.N.H. 1989).  The  James court borrowed RSA 508:4  for applica-                               _____          tion to  a claim for  attorney fees  in an IDEA  action.   As the          Murphys seek to enforce a substantive federal right rather than a          derivative fee-shifting provision, however, the RSA 508:4 limita-                                          17          New Hampshire  Dist. Court,  735 F. Supp.  43, 48  & n.9  (D.N.H.          __________________________          1990) (RSA 508:4 provides limitation applicable to   1983 actions          brought in New Hampshire).10                    We  next consider whether  borrowing RSA 508:4 comports          with the  purposes  underlying the  IDEA  and the  New  Hampshire          implementing regulation.  See  Wilson, 471 U.S. 266-67; Bow,  750                                    ___  ______                   ___          F. Supp. at  551.  The central purpose  of the IDEA is  to secure          special educational entitlements to  eligible recipients.  See 20                                                                     ___          U.S.C.   1400(b)(9)  ("it is  in the  national interest  that the          Federal  Government assist  State  and local  efforts to  provide          programs to meet the educational needs of handicapped children in          order to assure equal protection of the law").  Likewise, in  the          present  context the borrowing praxis  must take into account the          central importance  of  the IDEA's  procedural overlay.   As  the          Supreme  Court has observed, procedure is at the very core of the          IDEA:                    It seems  to us  no exaggeration to  say that                    Congress placed every bit as much emphasis on                    compliance with procedures giving parents and                    guardians  a  large measure  of participation                    . . . as  it did upon the  measurement of the                    resulting IEP against a substantive standard.          Board  of Educ. v. Rowley,  458 U.S. 176,  205-206 (1982); accord          _______________    ______                                  ______          W.G. v.  Board of Trustees, 960  F.2d 1479, 1484 (9th  Cir. 1992)          ____     _________________                                        ____________________          tion is even more suitable for borrowing in the instant action on          general policy grounds.               10We  need not  address any  impact that  amended RSA  508:4          (three-year period), or newly  enacted RSA   186-C:16-b, may have          either on the present analysis or on earlier case law relating to          "borrowing" in civil  rights actions under 42 U.S.C.     1981 and          1983.                                          18          (noting centrality  of implementing  procedure to  IDEA statutory          scheme); Mrs. C. v.  Wheaton, 916 F.2d 69,  72-73 (2d Cir.  1990)                   _______     _______          (same).                    The  core role of procedure in the IDEA setting is well          illustrated  by Timberlane's  failure  to initiate  the  required          administrative proceedings, see N.H.  Code Admin. R. Ed. 1125.01-                                      ___          (b) (3)-b; supra  note 4, to  end the IEP  impasse in this  case.                     _____          While  parents  and  school  officials dithered  and  debated,  a          disabled  child with  special  educational needs  lost day  after          irreplaceable day of educational opportunity mandated by law.  We          cannot  overlook  the  reality  that  a  central  federal  policy          underlying the  IDEA,  and  an  important feature  of  the  IDEA-          implementing  scheme adopted  in  New Hampshire,  have both  been          blunted.  Thus, absent a more particular limitation applicable to          this  extraordinary compensatory  education  claim,  we think  it          appropriate  to borrow  the  New  Hampshire catch-all  limitation          applicable to personal actions generally.11                    In addition,  the  more abbreviated  the limitation  on          compensatory  education claims  the  greater the  disincentive to                                        ____________________               11The  availability of  compensatory education  as  a remedy          under the  IDEA    the  one form  of IDEA relief  that holds  any          potential for  redressing this  deprivation    has  only recently          been recognized in this Circuit, see Pihl, 9 F.3d  at 187-89; and                                           ___ ____          only  a year earlier in the District of New Hampshire, Manchester                                                                 __________          Sch.  Dist. v. Christopher B.,  807 F. Supp.  860, 867-88 (D.N.H.          ___________    ______________          1992).   The first reported court of  appeals case to recognize a          compensatory education claim is Miener v. Missouri, 800 F.2d 749,                                          ______    ________          753 (8th  Cir.  1986).   Thus,  the recency  and novelty  of  the          compensatory education remedy likewise suggest that the catch-all          limitation  prescribed   in  RSA  508:4  is   most  suitable  for          borrowing.                                          19          parents  to shed  an  adversarial posture  and  get on  with  the          business  of cooperating  with  school officials  to further  the          special-education  needs of the child.  See David D. v. Dartmouth                                                  ___ ________    _________          Sch.  Comm., 775  F.2d 411,  424 (1st  Cir. 1985)  (IDEA embodies          ___________          preference for  educational decisions arrived  at through  "good-          faith cooperation  and negotiation among the  parties"); see also                                                                   ___ ____          Murphy  I, 973  F.2d  at 16  ("Obviously,  the Murphys  were  not          _________          sitting on  their rights,  but were attempting  to resolve  their          differences with the school district without resorting to litiga-          tion.").   The resultant  undermining  of section  1125 would  be          particularly erosive of IDEA  policy in New Hampshire.   Once the          IEP  negotiations had  remained  at an  impasse for  a reasonable          period  of time, i.e., not  long into the  two-year period during                           ____          which he received no  special education, the onus was  on Timber-          lane to  obtain administrative approval  to implement the  IEP it          considered appropriate for Kevin.  See supra note 4.                                             ___ _____                    Finally, as  noted above,  most IDEA cases  involve the          borrowing  of state  statutes of  limitations for  application to          judicial appeals  from administrative decisions.   See Amann, 991                                                             ___ _____          F.2d at  931 (collecting  administrative  review cases  borrowing          limitations ranging from thirty days to three years); Bow, 750 F.                                                                ___          Supp. at 548 (similar).  Careful research discloses but one case,          Hall v.  Knott County Bd. of Educ., 941 F.2d 402 (6th Cir. 1991),          ____     _________________________          cert.  denied, 112  S.Ct.  982 (1992),  involving a  compensatory          _____  ______          education  claim even roughly analogous to the Murphy claim.  The          blind  twenty-seven-year-old plaintiff  in  Hall brought  an IDEA                                                      ____                                          20          action challenging the appropriateness of the special educational                                 _______________          services provided to her by the defendant school district between          five  and ten  years earlier.   Id.  at 404-06.   The  Hall court                                          ___                    ____          assumed, arguendo, that a five-year limitation applied, but found                   ________          the action time-barred  in any  event because it  could not  have          accrued less than six years before the complaint was  filed.  Id.                                                                        ___          at 408-09.   Although Hall  is distinguishable  from the  present                                ____          action on a  number of  grounds, the most  cogent distinction  is          that the present dispute  involves a total denial of  all special                                               _____          education services for an  extended period of time, not  merely a          challenge  to the appropriateness  of special  education services                            _______________          provided  years  earlier.    Revisiting  the  appropriateness  of                                                        _______________          special education services actually provided in school years long          since passed  may  indeed be  an exercise  of "extremely  limited          utility,"  as has been suggested,  see Bow, 750  F. Supp. at 550,                                             ___ ___          but given the totality  of the present deprivation the  effort to          evaluate the merits  of the compensatory education claim  in this          case is both useful and far less problematic.               (iv) Accrual                (iv) Accrual                     _______                    We  turn  now  to the  question  of  accrual, which  is          governed by  federal law.  Hall,  941 F.2d at 408;  G.D. v. West-                                     ____                     ____    _____          moreland  Sch.  Dist., 783  F.  Supp.  1532, 1535  (D.N.H.  1992)          _____________________          (same); cf.  Rivera-Muriente v. Agosto-Alicea, 959  F.2d 349, 353                  ___  _______________    _____________          (1st Cir. 1992)  (same,   1983  case).  "The  general rule  under          federal law is  said to be  that [IDEA] claims  'accrue when  the          parents  know or have reason to know  of the injury or event that                                          21          is  the basis for their claim.'"   Hall, 941 F.2d at 408 (quoting                                             ____          Judith W. Wegner, Educational  Rights of Handicapped Children, 17                            ___________________________________________          J. of L. & Educ. 625, 654          (1988)).  As with the methodology for borrowing a limitation from          state law, no mechanical  formula controls the accrual determina-          tion:  "Where a statute does  not indicate when a cause of action          accrues, the  court must 'keep[] in mind the purpose of the [Act]          and the practical ends to be served by a period of limitations.'"          G.D.,  783 F.  Supp. at  1535 (alterations  in original,  quoting          ____          Albert v. Maine Cent. R.R., 905 F.2d 541, 543 (1st Cir. 1990)).          ______    ________________                    Pinpointing accrual  in the  present case would  pose a          complex question,  inasmuch as the Murphys'  action challenges an          entire course of  conduct by Timberlane.   Compare, e.g.,  Amann,                                                     _______  ____   _____          991  F.2d at 933-34  (involving an appeal  from an administrative          decision and noting under  Massachusetts law that limitation runs          from "receipt of notice  of final decision"); G.D., 783  F. Supp.                                                        ____          at 1535-36 (similar, N.H. law).  We need not fix the precise date          of accrual,  however,  since the  Murphys'  claim  unquestionably          accrued within  the six-year  period preceding their  request for          administrative review on August 20, 1989.   Thus, the request for          administrative  review  was  timely whether  accrual  occurred in          October  of  1983 upon  Kevin's  initial trial  placement  at the          Pinkerton school (as Timberlane  urged below), or at the  time he          was  permanently placed  in  January  of  1984  (as  the  Murphys          claimed), or at some intermediate time.   Moreover, from whatever          point in time  within the  two-year period the  Murphys might  be                                          22          found to have known (or had reason to know) either of "the injury          or the event that is the basis for their [compensatory education]          claim," Hall, 941 F.2d at 408, Timberlane remained  in continuous                  ____          violation of its section 1125 obligation to pursue an administra-          tive resolution to the IEP stalemate.   Consequently, we conclude          that  Timberlane's ongoing  failure to  comply with  section 1125          throughout the relevant portion of the two-year period constitut-          ed  a  unitary violation  under the  IDEA  and the  New Hampshire          implementing regulation.          C.  The Murphy Motion for Summary Judgment          C.  The Murphy Motion for Summary Judgment              ______________________________________                    As  a  threshold  matter,  two  arguments  advanced  by          Timberlane on  the  merits have  been  foreclosed by  our  recent          decision in Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184 (1st                      ____    ____________________________          Cir. 1993), recognizing a  compensatory education claim under the          IDEA, id. at 187-89, notwithstanding  that the student was beyond                ___          the eligible age  for a free  education under  state law, id.  at                                                                    ___          189-90.  Thus, two further issues remain unaddressed.                1.   Section 1125               1.   Section 1125                    ____________                    The district court  held Timberlane liable  for failing          to  fulfill its section 1125 responsibility  either to present an          acceptable IEP or seek  administrative enforcement.  The district          court  simply applied  our  own  straightforward construction  of          section 1125:                    In  New  Hampshire, if  the  parents disagree                    with a proposed IEP and the local educational                    agency feels it would be in the best interest                    of the child to  implement the IEP, the local                                          23                    agency is required to initiate administrative                              ________                    procedures to obtain  permission from a hear-                    ing officer to implement  the IEP.  N.H. Code                    Admin.  R. Ed. 1125.01(b)(3)-b.  No such pro-                                                     __ ____ ____                    cedures were ever initiated by Timberlane.                    _______ ____ ____ _________ __ __________          Murphy I, 973  F.2d at  17 (footnote omitted  & emphasis  added).          ________          Under section 1125, the school district must  take the initiative          to ensure  that intransigence and  foot-dragging in the  IEP pro-          cess,  whether bureaucratic  or  parental,  do  not  indefinitely          compromise the  child's right  to a free  and appropriate  public          education.  See, e.g.,  W.G., 960 F.2d at 1486  (parental conduct                      ___  ____   ____          does  not  waive  responsibility  of school  district);  Town  of                                                                   ________          Burlington  v. Department of Educ.,  736 F.2d 773,  795 (1st Cir.          __________     ___________________          1984) (same), aff'd, 471 U.S. 359 (1985).                        _____                    Timberlane's primary argument on appeal is that an IDEA          claim, a federal cause of action, cannot be  premised on a viola-                   _______          tion  of  a  state  administrative regulation.12    Its  argument                       _____          overlooks the IDEA framework and our  case law.  The IDEA invests          expansive  discretion  in the  states  to  structure implementing          procedures  and  enforcement  mechanisms, thereby  constructively          incorporating duly promulgated state regulations:                                        ____________________               12Timberlane  also  argues  that  section  1125  is  invalid          because  it imposes  on  the school  district obligations  beyond          those authorized either by  the IDEA or the New  Hampshire imple-          menting statute.   Neither  argument is  persuasive.  First,  the          IDEA and its companion regulations merely establish  foundational          requirements     states may impose more  stringent procedural and          substantive  requirements.   See  Burlington,  736  F.2d at  789.                                       ___  __________          Second, section 1125 is well within the broad authority conferred          upon the New  Hampshire Board of Education  to promulgate regula-          tions under  the  IDEA.   See  N.H. Rev.  Stat. Ann.     186-C:16                                    ___          (authorizing, inter  alia, regulations  governing appeals  of IEP                        _____  ____          team  decisions  and  regulations  relating  to  "other  matters"          pertinent to implementation of the IDEA).                                          24                    [S]tate  standards,  be  they substantive  or                    procedural,  that  exceed  the federal  basic                    floor  of meaningful,  beneficial educational                    opportunity . . . . will operate to determine                    what an appropriate  education requires for a                    particular child in a given state.          Id. at 789  (footnotes omitted); accord David D., 775 F.2d at 417          ___                              ______ ________          (1st  Cir. 1985)  (it is  "beyond cavil  that the  federal [IDEA]          standard  explicitly incorporates" certain  state standards); Doe                                                                        ___          v. Board  of Educ. of Tullahoma  City Sch., 9 F.3d  455, 457 (6th             _______________________________________          Cir. 1993) (same, citing cases).  It is  plainly true, of course,          as  Timberlane  argues, that  not  every procedural  irregularity          gives rise to liability under the IDEA.  Nevertheless, "procedur-          al inadequacies [that have]  compromised the pupil's right  to an          appropriate education . . . or caused a deprivation of education-          al benefits" are the stuff of successful IDEA actions.  Roland M.                                                                  _________          v. Concord  Sch. Comm., 910 F.2d 983,  994 (1st Cir. 1990) (cita-             ___________________          tions omitted), cert. denied, 499 U.S.  912 (1991).  And that  is                          ____  ______          exactly what happened here.                    We  emphasized in  Murphy I  that whereas  "parents are                                       ________          entitled to request a hearing if they disagree with an IEP, state          regulations impose  upon Timberlane not  only the right,  but the          obligation  to  do  the same."    973  F.2d  at 17  (emphasis  in          __________          original).13    Thus, by  its  longstanding  procedural lapse  in                                        ____________________               13Timberlane's  misconceptions about the  IDEA are betrayed,          as  much as anything, by  the contention that  its institution of          truancy proceedings should be  considered the rough equivalent of          the  administrative  adjudication  required  under  section 1125.          Even assuming that Timberlane had done something more than merely          file  the truancy  petition,  a  coercive adversarial  proceeding          against a parent is no substitute for a substantive review of the          special educational needs of the handicapped child.                                          25          failing  to  initiate  administrative review  as  required  under          section 1125,  Timberlane abdicated its responsibility  to termi-          nate  the IEP  impasse preventing  Kevin's access  to a  free and          appropriate  education.   We  think  a  procedural default  which          permits a disabled child's entitlement to a  free and appropriate          education to go unmet for two years constitutes sufficient ground          for liability under the IDEA.  See, e.g., W.G., 960  F.2d at 1484                                         ___  ____  ____          (when severe procedural  flaws infect IEP process an  action lies          under IDEA);   Roland M.,  910 F.2d at  994 (same); Mrs.  C., 916                         _________                            ________          F.2d  at 72-73 (same); cf. Hampton Sch. Dist. v. Dobrowolski, 976                                 ___ __________________    ___________          F.2d  48, 53-54 (1st Cir. 1992) (technical IDEA violations may be          insufficient to warrant setting aside IEP).               2.  Summary Judgment               2.  Summary Judgment                   ________________                    Lastly,   Timberlane  claims  that  genuine  issues  of          material  fact precluded  summary judgment  as to  whether:   (1)          Kevin's parents were intransigent and at least partly responsible          for  interrupting Kevin's  education,  and  (2)  the  educational          services  Timberlane provided from  1985 to 1989  were "more than          appropriate,"  and  thus  compensated for  the  educational  loss          occasioned during 1982-84.   The party resisting summary judgment          "may not rest  upon the mere allegations or denials  of the . . .          pleadings, but . . .  must set forth specific  facts showing that          there  is a  genuine issue for  trial."   Fed. R.  Civ. P. 56(e).          There is no  trialworthy issue unless there  is sufficient compe-          tent  evidence to  enable  a finding  favorable  to the  opposing          party.   Anderson  v.  Liberty Lobby,  Inc.,  477 U.S.  242,  248                   ________      ____________________                                          26          (1986).                    A painstaking review of the  entire record has not dis-          closed, nor does Timberlane  identify, any evidence sufficient to          generate a genuine  factual issue as  to either contention,  even          assuming  their  materiality.14    Instead,  consistent  with its          prior  strategy, Timberlane  elected to  try to fend  off summary          judgment through recourse to Fed. R. Civ. P. 56(f), which permits          a party  to establish,  by affidavit, that  evidence which  would                                  __ _________                        _____          demonstrate a trialworthy issue is for some valid reason unavail-          able.   See Fed. R. Civ.  P. 56; see also James  W. Moore et al.,                  ___                      ___ ____          Moore's  Federal  Practice     56.22-56.24  (1993).    Timberlane          __________________________          relied  entirely on  its contention,  unsubstantiated by  the re-          quired  affidavit,15 that  it needed  "an opportunity  to conduct                                        ____________________               14The first  hurdle  confronting Timberlane,  of course,  is          that parental intransigence would not absolve the school district          of its responsibility  under section 1125.   Indeed, section 1125          targets intransigence.   See Murphy I,  973 F.2d at 17;  supra p.                                   ___ ________                    _____          23.  Thus, Timberlane  can demonstrate no issue of  material fact                                                              ________          in this regard.  But neither has it demonstrated  a genuine issue                                                              _______          of  fact.    Although  the record  contains  several  "sarcastic"          letters from Mr. Murphy to  Mr. Sarbanis, Timberlane presented no          evidence suggesting  anything  more than  that Mr.  Murphy was  a          tenacious and zealous advocate for his son's interests.   Summary          judgment should not be disturbed on so fragile a claim, especial-          ly as two school district representatives praised Mr. Murphy as a          cooperative and concerned, indeed model, parent.  Even though Mr.          Sarbanis,  the one school district official  with whom Mr. Murphy          clearly  had a stormy relationship, still lives in New Hampshire,          Timberlane presented  no affidavit  from Sarbanis.   And although          Timberlane's  pleadings are  replete  with allegations  that  Mr.          Murphy was  intransigent, "[b]rash  conjecture, coupled  with the          hope that something concrete will materialize, is insufficient to          block summary judgment."   Dow  v. United Bhd.  of Carpenters,  1                                     ___     __________________________          F.3d 56, 58 (1st Cir. 1993).               15Given that the district  court had already rejected essen-          tially  these same  contentions, advanced  in support  of Timber-          lane's laches defense, see  supra pp. 6-8, the failure  to comply                                 ___  _____                                          27          discovery to reconstruct [the]  chronology [of Kevin's education]          and  to fill in critical gaps about events which occurred before,          during and after  the years  in question[,]" and  to "depose  the          out-of-state witnesses."                    The district  court  rejected Timberlane's  Rule  56(f)          initiative,  on  the  ground that  the  evidence  adduced  at the          hearing on  the laches  defense demonstrated that  Timberlane had          made no serious  effort to  present its putative  evidence.   The          court  accordingly ruled  that Timberlane  could not  take refuge          from  summary judgment under Rule 56(f) since the memories of its          witnesses were available for  affidavit purposes in opposition to          the  Murphys' motion for summary judgment.  The Rule 56(f) deter-          mination is reviewed for  abuse of discretion.  First  Nat'l Bank                                                          _________________          v. Cities Service Co., 391 U.S. 253, 294 (1968).  We find none.             __________________                    In March of 1993, more than one month after the eviden-          tiary hearing on the laches defense, the district court entered a          scheduling  order requiring  the  parties to  submit "law  and/or          evidence" on  the merits of  the compensatory education  claim             thereby  plainly signaling  its intention  to proceed  beyond the          procedural defenses interposed by Timberlane.  Shortly thereafter          the  Murphys filed  their  motion for  summary  judgment.   Thus,          although it  had  clear  notice that  the  district  court  would          proceed to the merits, Timberlane made the  strategic decision to                                        ____________________          with the Rule  56(f) affidavit requirement was  no mere technical          lapse.  See Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir. 1984)                  ___ ______    ________          (Rule  56(f)  affidavit  requirement  generally  to  be  enforced          liberally, but district court need not spare litigants the effect          of their own neglect).                                          28          persist  with its  litigation position, viz.,  that it  could not                                                  ____          provide evidence  because its witnesses (or  their memories) were          unavailable.   The district court did not abuse its discretion by          declining  to credit  or  revisit the  flawed premise  underlying          Timberlane's Rule 56(f) motion.                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    For the foregoing reasons, we uphold the district court          order  disallowing defendant-appellant's defenses  and affirm the          judgment in favor of plaintiffs-appellees.                    Affirmed.                    ________                                          29
