USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1828
KEVIN W. MURPHY, ETC., ET AL.
Plaintiffs, Appellees,
v.
TIMBERLANE REGIONAL SCHOOL DISTRICT,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Gerald M. Zelin, with whom Diane M. Gorrow and Soule, Leslie,
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Zelin, Sayward and Loughman were on brief for appellant.
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Ellen J. Shemitz, with whom Michael R. Chamberlain and
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Chamberlain and Connor were on brief for appellees.
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April 28, 1994
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CYR, Circuit Judge. Plaintiffs-appellees Kevin W.
CYR, Circuit Judge.
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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
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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
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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
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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
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summary judgment against the Murphys) ("Murphy I").
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As the court explained in Murphy I:
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[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
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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
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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.
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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
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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
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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
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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
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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-
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ests of the student, be implemented, the Local Educa-
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tion Agency shall initiate its right of due process as
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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
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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
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A. Laches
A. Laches
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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
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that "the Murphys' delay in filing their claim was not so un-
reasonable as to make the laches defense available without a
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clear showing of prejudice." Id. (emphasis added). On remand,
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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,
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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
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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
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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.,
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Fairfield 274-278 Clarendon Trust v. Dwek, 970 F.2d 990, 994-95
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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.
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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.
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Dennison Mfg. Co., 3 F.3d 482, 486 (1st Cir. 1993) (abuse of
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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.
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Roberts, 978 F.2d 17, 21 (1st Cir. 1992)) (citations omitted).
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B. The Timberlane Motion for Summary Judgment
B. The Timberlane Motion for Summary Judgment
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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-
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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.
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1990) ("court of appeals [may] affirm a judgment on any indepen-
dently sufficient ground").
(i) The "Borrowing" Methodology
(i) The "Borrowing" Methodology
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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
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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,
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198 (1st Cir. 1987) (borrowing N.H. RSA 508:4 six-year limita-
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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
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F. Supp. 546, 549 (D.N.H. 1990) (similar) (Stahl, J.); see also
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Tokarcik v. Forest Hills Sch. Dist., 665 F.2d 443, 449 (3d Cir.
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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.
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denied, 458 U.S. 1121 (1982).
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(ii) The Compensatory Education Claim
(ii) The Compensatory Education Claim
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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
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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
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Honig v. Doe, 484 U.S. 305, 310 (1988) (finding IDEA "confers
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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.
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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-
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phys' compensatory education claim on the merits rather than
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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
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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
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for urgent administrative intervention. Furthermore, whereas the
limitation borrowed in this case will govern whether the Murphys'
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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
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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
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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
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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
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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
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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
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federal law in any respect." Id. (emphasis added). Under this
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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
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____________________
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
