J.A. v. MONROE TOWNSHIP BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOANNA A., individually and No. 1:21-cv-06283-NLH-MJS

on behalf of her

minor child J.A., OPINION

Plaintiffs,

V.

MONROE TOWNSHIP BOARD OF

EDUCATION; NEW JERSEY

DEPARTMENT OF EDUCATION;

KEVIN DEHMER, INTERIM

COMMISSIONER OF EDUCATION;

NEW JERSEY OFFICE OF

ADMINISTRATIVE LAW; ELLEN

S. BASS, CHIEF

ADMINISTRATIVE LAW JUDGE;

JEFFREY R. WILSON,

ADMINISTRATIVE LAW JUDGE;

JOHN S. KENNEDY,

ADMINISTRATIVE LAW JUDGE;

CATHERINE A. TUOHY,

ADMINISTRATIVE LAW JUDGE;

AND DOES 1 – 250 SIMILARLY

SITUATED ADMINISTRATIVE LAW

JUDGES,

Defendants.

ROBERT CRAIG THURSTON

THURSTON LAW OFFICES LLC

100 SPRINGDALE ROAD A3

PMB 287

CHERRY HILL, NJ 08003

Counsel for Plaintiffs.

LAURIE LEE FICHERA

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, NJ 08625

Counsel for the State Defendants.

WILLIAM S. DONIO

YOLANDA NICOLE MELVILLE

COOPER LEVENSON, P.A.

1125 ATLANTIC AVENUE, THIRD FLOOR

ATLANTIC CITY, NJ 08401-4891

Counsel for Monroe Township Board of Education.

HILLMAN, District Judge

Currently before the Court is the State Defendants’1 Motion

to Dismiss Plaintiffs’2 Complaint (ECF 33). For the reasons that

follow, the State Defendants’ motion will be granted in part and

denied in part.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

For purposes of this motion to dismiss, the Court takes the

facts alleged in the complaint as true and will only recount

those salient to the instant motion. J.A. is a disabled child

who was receiving special education services from Monroe

1 The State Defendants the New Jersey Department of Education

(“NJDOE”), the Commissioner of Education, the New Jersey Office

of Administrative Law (“NJOAL”), and the Administrative Law

Judges (“ALJ”) that presided over the underlying due process

matters: ALJ Ellen Bass, ALJ Jeffrey R. Wilson, ALJ John S.

Kennedy, ALJ Catherine A. Tuohy, as well as DOEs 1-250

“Similarly Situated” ALJs. (See ECF 33).

2 Plaintiffs are Joanna A., individually and on behalf of her

minor child J.A. (See generally ECF 1).

Township Board of Education (“MTBOE”). (ECF 1 at 51).

Plaintiffs allege that J.A. was diagnosed with Autism and

apraxia when she was a toddler. (Id.) Despite submitting the

opinions of more than one medical practitioner who confirmed

J.A.’s diagnoses and recommended services, MTBOE declined to

provide them during J.A.’s kindergarten and first grade years at

school.3 (Id. at 51-52). Later, in 2015, Plaintiffs took J.A.

for a further medical evaluation where it was determined that

she had severe auditory processing disorder. (Id. at 53).

MTBOE accepted the diagnosis but refused to provide services.

(Id. at 54).

Plaintiffs alleged that MTBOE did prepare an Individualized

Educational Program (“IEP”) for J.A.’s third grade year but that

it was subpar in terms of J.A.’s education needs.4 (Id. at 55-

57). J.A.’s mother accepted the plan because she felt that

there was no other option. (See id. at 57). A further IEP

session was held that fall, and though a revised education plan

was established, J.A.’s mother felt that her input was not

valued. (Id. at 59-60).

3 Related to these diagnoses during this time, Plaintiffs filed

two due process complaints against MTBOE. (Id. at 52). One

settled and Plaintiffs lost the other case. (Id.) That second

case has been appealed and is currently before this Court. (See

Civil No. 1:20-cv-09498-NLH-MJS).

4 The complaint notes that there might have been another IEP

meeting during the winter of the school year. (Id. at 63).

The complaint also alleges that that year J.A.’s mother had

been visiting the school in order to observe J.A. and MTBOE

informed her that her visits would be limited. (Id. at 61). At

the next IEP meeting, J.A. was provided with a plan for the next

school year, the fourth grade, that included even fewer services

than the prior year.5 Because of the lack of services,

Plaintiffs ultimately switched J.A. to homebound schooling,

where she has been ever since. (Id. at 76).

On May 24, 2017, Plaintiffs filed a due process complaint

against MTBOE with the NJDOE. (Id. at 77). The case was not

resolved during mediation, and it was later transferred to the

OAL for a hearing. (Id. at 78). Plaintiffs allege that though

they were entitled to a hearing within approximately ten days of

that transmittal, ALJ Beaver held a settlement conference

instead. (Id. at 79). That day was one of the OAL’s

“Settlement Thursdays”, where the OAL would hold settlement

conferences rather than hearings as required by law. (See id.)

In addition, Plaintiffs were never told that the session with

ALJ Beaver would be a settlement conference rather than a

hearing when the case was transmitted from the NJDOE to the OAL.

(Id.) Thereafter, because the parties did not settle, the

5 In addition, because of a pending due process complaint, J.A.

was supposed to be receiving the same services from the prior

year. The complaint pleads that J.A. did not receive those

services.

matter was transferred to ALJ Wilson to hold a hearing, who set

the hearing date for months out into the future, despite there

being no adjournment request by the parties. (Id. at 80). In

October 2017, ALJ Wilson executed a pre-hearing order which

advised the parties that if discovery materials were not

exchanged at least five days prior to the hearing, those

materials would be excluded upon application of a party (the

“Five Day Exchange Rule”). (Id. at 81).

Plaintiffs allege that the hearing was not scheduled until

January 8, 2018, 203 days after the period for mediation at the

NJDOE had ended and the case was to be transferred to the OAL.

(Id. at 82). Further, Plaintiffs sought to amend their due

process complaint upon retaining counsel in November 2017, but

ALJ Wilson did not rule on that motion, which was ultimately

denied on May 1, 2018. (Id. at 86). Plaintiffs allege that

they sent a letter that morning asking about the status of the

motion and that ALJ Wilson issued an order denying that motion

later that day in retaliation for pointing out his violation of

the timelines for resolving due process complaints. (Id.)

Plaintiffs filed another due process complaint on May 22,

2018, alleging further misconduct by MTBOE since the last one

had been filed. (Id.) ALJ Wilson scheduled a hearing on the

first due process complaint on June 11, 2018. However, because

Plaintiffs in the interim had filed a putative class action

naming him as a defendant, ALJ Wilson recused himself and was

replaced by ALJ Kennedy. Both due process complaints were

consolidated over the summer of 2018 and set for a hearing on

October 1, 2018.6 Plaintiffs alleged that MTBOE produced

materials only four days before the hearing in violation of the

Five Day Exchange Rule. (Id. at 90). Plaintiffs moved to

exclude that evidence but ALJ Kennedy denied the motion. (Id.

at 91).

Plaintiffs filed an interlocutory appeal which was before

the undersigned and which the undersigned denied without

prejudice pending the completion of the hearing. (Id. at 92).

Before the matter was remanded to the OAL, Plaintiffs learned of

ex parte communications between ALJ Kennedy and MTBOE and

demanded that ALJ Kennedy recuse himself. (Id. at 93). ALJ

Kennedy did so and was replaced by ALJ Tuohy in July 2020.

(Id.) ALJ Tuohy then conducted another status conference rather

than a hearing. (Id. at 94). ALJ Tuohy did not hold a hearing

until the fall and then issued her opinion on February 22, 2021.

(Id. at 97).

Plaintiffs originally filed this case before this Court on

May 23, 2021. (Id.) The complaint contains counts against

MTBOE and counts against some or all of the State Defendants.

6 The second due process complaint was originally assigned to ALJ

Bass when it was transferred from the NJDOE to the OAL. (Id. at

88).

The court will now recount the Counts that name the State

Defendants as those are the ones relevant to this motion to

dismiss. They are: Count II (legal error in the first due

process case against the State Defendants), Count III (systemic

violation of the ten day peremptory hearing date against the

State Defendants), Count IV (systemic violation of the Five Day

Exchange Rule by the State Defendants), Count V (systemic

violation of the adjournment rule by the State Defendants);

Count VI (systemic violation of the 30 day resolution period by

the State Defendants); Count VII (systemic violation of the

access to records procedural safeguard by the State Defendants);

Count VIII (systemic violation of discovery rules by the State

Defendants); Count IX (systemic violation of the rules of

evidence by the State Defendants); Count X (systemic violation

of the hearing officer qualifications by the State Defendants);

Count XI (systemic violation of the independence of the

adjudicating body of special education disputes by the State

Defendants); Count XII (systemic violation of the 45 Day Rule by

the State Defendants); Count XIII (federal preemption against

the State Defendants); Count XVII (violation of § 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq., by All

Defendants except MTBOE and Doe ALJs 1-250); Count XVIII

(violation of Title II of the Americans with Disabilities Act of

1990, 42 U.S.C. § 12101 et seq. (the “ADA”) by All Defendants

except MTBOE and Doe ALJs 1-250); Count IXX (systemic civil

rights violations under 42 U.S.C.§ 1983 by the State

Defendants); and Count XX (systemic malicious abuse of process

by the State Defendants). Instead of attacking the complaint

count by count, the State Defendants organize their motion to

dismiss around certain legal theories and arguments. Thus, the

Court will address the motion to dismiss by proceeding through

the State Defendants’ arguments rather than going count by

count.

BACKGROUND

I. The IDEA

Though Plaintiffs state claims under laws other than the

IDEA, the thrust of their complaint revolves around the

defendant’s failure to honor their responsibilities under the

IDEA. Therefore, the Court will provide some color on the IDEA

as a statutory and regulatory scheme. Congress enacted the IDEA

to, among other things, ensure “the rights of children with

disabilities and parents of such children are protected[.]” 20

U.S.C. § 1400(d)(1)(A)-(B). The IDEA requires that every child

with a disability receive a free appropriate public education (a

“FAPE”) from their public school if that school receives federal

funding under the IDEA. Id. at § 1412(a)(1)(A); 34 C.F.R. §

300.101(a). The term “free appropriate public education” means

the provision of “special education and related services” that

meet certain criteria. 20 U.S.C. § 1401(9). The IDEA also

guarantees parents of disabled children a right to participate

in the educational programming offered to their children.

To ensure that public schools adequately provide a FAPE and

that the rights of disabled students and their parents are not

infringed, Congress enacted various “procedural safeguards” that

participating public schools must comply with. Id. at §

1412(6)(A); id. at § 1415(a). One such procedural safeguard

provides standards for adjudicating disputes about whether a

school has adequately provided a FAPE. Per Congress’

requirements, these disputes begin with the filing of a “due

process petition” or “due process complaint.” Either the public

school or the child may file a due process complaint, and that

complaint may seek relief with respect to “any matter relating

to the identification, evaluation, or educational placement of

the child, or the provision of a free appropriate public

education to such child.” Id. at § 1415(b)(6).

The IDEA contemplates that it is the State Educational

Agency that is responsible for making sure that there are fair

and impartial procedures in place to handle any due process

petition. Id. at §1415 (f)(1)(A) (“Whenever a complaint has

been received under subsection (b)(6) or (k), the parents or the

local educational agency involved in such complaint shall have

an opportunity for an impartial due process hearing, which shall

be conducted by the State educational agency or by the local

educational agency, as determined by State law or by the State

educational agency.”); id. at §1415(e)(1) (“Any State

educational agency or local educational agency that receives

assistance under this subchapter shall ensure that procedures

are established and implemented to allow parties to disputes

involving any matter.”).

Once a due process complaint has been filed, Congress has

set strict deadlines by which certain events must occur. See

Id. at § 1415(f)(1)(B)(ii) (referencing timelines “applicable

[to] a due process hearing”); 34 C.F.R. § 300.515(a) (setting

forth a strict timeframe for due process petition resolution);

N.J.A.C. 6A:14-2.7(j) (same). These procedures are central to

the instant matter. Beginning with the date the due process

complaint is filed, the parties have thirty days within which to

settle or otherwise resolve the dispute to the satisfaction of

the parent and child. See 20 U.S.C. § 1415(f)(1)(B); 34 C.F.R.

§ 300.510(b). This period is referred to as the “resolution

period.”

If the case is not resolved during the resolution period,

it may proceed to a hearing. Congress has called these “due

process hearings.” In New Jersey, “[a] due process hearing is

an administrative hearing conducted by an administrative law

judge” in the OAL. N.J.A.C. 6A:14-2.7(a). “If the local

educational agency has not resolved the complaint to the

satisfaction of the parents within 30 days of the receipt of the

complaint, the due process hearing may occur, and all of the

applicable timelines for a due process hearing under this

subchapter shall commence” 20 U.S.C. § 1415(f)(1)(B)(ii); 34

C.F.R. § 300.510(b); see N.J.A.C. 6A:14-2.7(j) (“A final

decision shall be rendered by the administrative law judge . . .

after the conclusion of the resolution period”).

Once the 30-day resolution period ends, federal regulations

require that due process petitions be decided by hearing

officers within 45 days, unless either party requests specific

adjournments. 34 C.F.R. § 300.515(a) (states receiving federal

funding “must ensure that not later than 45 days after the

expiration of the 30 day period under § 300.510(b) . . . (1) A

final decision is reached in the hearing; and (2) A copy of the

decision is mailed to each of the parties.”). New Jersey’s

Administrative Code contains a similar requirement. N.J.A.C.

6A:14-2.7(j) (“[a] final decision shall be rendered by the

administrative law judge not later than 45 calendar days after

the conclusion of the resolution period[.]”)

Both federal and New Jersey State law permit “specific

adjournments” to be granted “at the request of either party”

which will effectively toll the 45-day period within which a

decision must be entered. See N.J.A.C. 6A:14-2.7(j) (45-day

period may only be extended if “specific adjournments are

granted by the administrative law judge in response to requests

by either party to the dispute”); 34 C.F.R. § 300.515(c) (“[a]

hearing or reviewing officer may grant specific extensions of

time beyond the periods set out in paragraphs (a) and (b) of

this section at the request of either party.”). No other delays

are contemplated. Therefore, if no specific adjournments are

requested by the parties, a final decision must be rendered

within 45 days after the end of the 30-day resolution period.

34 C.F.R. § 300.515(a); N.J.A.C. 6A:14-2.7(j). The Court refers

to this requirement as the “45 Day Rule.” With that overview,

the Court turns to Plaintiffs’ allegations.

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. § 1331 and § 1367.

II. Standard of Review

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

Rule 12(b)(1) governs the State Defendants’ motion to the

extent it challenges Plaintiffs’ action on standing and immunity

grounds. “A challenge to subject matter jurisdiction under Rule

12(b)(1) may be either a facial or a factual attack.” Davis v.

Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). “The former

challenges subject matter jurisdiction without disputing the

facts alleged in the complaint, and it requires the court to

‘consider the allegations of the complaint as true.’” Id.

(quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d

Cir. 2006)). A factual challenge attacks the allegations

underlying the complaint’s assertion of jurisdiction, “either

through the filing of an answer or ‘otherwise present[ing]

competing facts.’” Id. (quoting Constitution Party of Pa. v.

Aichele, 757 F.3d 347, 358 (3d Cir. 2014)).

The Court of Appeals for the Third Circuit has held that

motions to dismiss for lack of standing are best understood as

facial attacks. In re Schering Plough Corp. Intron/Temodar

Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012)

(“Defendants’ Rule 12(b)(1) motions are properly understood as

facial attacks because they contend that the [a]mended

[c]omplaints lack sufficient factual allegations to establish

standing.”). In assessing a facial attack on subject matter

jurisdiction under Rule 12(b)(1), courts must apply the familiar

12(b)(6) standard. Id. (“In evaluating whether a complaint

adequately pleads the elements of standing, courts apply the

standard of reviewing a complaint pursuant to a Rule 12(b)(6)

motion to dismiss for failure to state a claim”); see also

Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d

Cir. 2011) (“A dismissal for lack of statutory standing is

effectively the same as a dismissal for failure to state a

claim.”). Guided by In re Schering Plough and Baldwin, the

Court finds it must apply the 12(b)(6) standard to Defendants’

jurisdictional arguments.

I. Analysis

a. Failure to Show Violation of the IDEA or New Jersey

Regulations by the State Defendants.

The State Defendants move to dismiss the claims that

revolve around their alleged violation of the IDEA on the

grounds that Plaintiffs have failed to state claims. The State

Defendants argue that they have sufficient procedures in place

to comply with the IDEA and Plaintiffs’ complaint is really just

venting their discontent with the ALJ’s decision. With respect

to Counts II-IX and XII, they argue that Plaintiffs have only

stated conclusory claims of violation of the IDEA and New Jersey

Regulations. In combatting Plaintiffs’ claims, they argue that

there is no rule that a due process hearing must be conducted

within ten days of a case’s transmittal from the NJDOE to the

OAL and that settlement is encouraged under the IDEA.

It may be true that settlement may be encouraged under the

IDEA, but in so suggesting the State Defendants skirt the fact

that the New Jersey Regulations do provide that the first

hearing should be approximately ten days after transmittal.

N.J.A.C. § 1:6A-9.1(a) (“Upon unsuccessful conclusion of the

resolution process or mediation, as provided in N.J.A.C. 6A:14–

2.7, the representative of the Office of Special Education

Programs shall immediately contact the Clerk of the Office of

Administrative Law and the Clerk shall assign a peremptory

hearing date. The hearing date shall, to the greatest extent

possible, be convenient to all parties but shall be

approximately 10 days from the date of the scheduling call.”).

Plaintiffs allege that they did not receive a hearing anywhere

close to ten days after the transmittal of their case to the OAL

— instead they received a settlement conference. That is more

than enough to state a plausible claim at this juncture.

Similarly, the State Defendant’s attack on Count V alleging

a violation of the adjournment rule completely misses the fact

that the IDEA only allows adjournments at the request or consent

of the parties and Plaintiffs allege that there was no request

or consent to some of the lengthy adjournments. 34 C.F.R. §

300.515(a); (ECF 1 at 123-26).

In the same vein, Plaintiffs have adequately pled in Count

IV that the procedures provided by the State Defendants did not

adequately protect their discovery rights by not requiring MTBOE

to provide discovery at least five days before the hearing. The

State Defendants are right that there is no rule or regulation

that specifically states that discovery must be exchanged five

days before the hearing without exceptions. But in so arguing

they miss the forest for the trees and the plain letter of the

applicable regulations. The IDEA makes clear that discovery

should be exchanged freely and without delay before a hearing

and that such disclosure occur not closer that five days before

the hearing date. See 20 U.S.C. § 1415(f)(2)(A) (“Not less than

5 business days prior to a hearing conducted pursuant to

paragraph (1), each party shall disclose to all other parties

all evaluations completed by that date, and recommendations

based on the offering party's evaluations, that the party

intends to use at the hearing.”); id. at § 1415(b)(1) (the

procedures put in place by the state must provide “[a]n

opportunity for the parents of a child with a disability to

examine all records relating to such child[.]”); 34 C.F.R. §

300.613 (“The agency must comply with a [discovery] request

without unnecessary delay[.]”)

New Jersey regulations mirror the federal regulations as

they should. See N.J.A.C. § 1:6A-10.1(c) (“Upon application of

a party, the judge shall exclude any evidence at hearing that

has not been disclosed to that party at least five business days

before the hearing, unless the judge determines that the

evidence could not reasonably have been disclosed within that

time.”). Plaintiffs specifically identity an occasion where

MTBOE provided discovery less than five days before a scheduled

hearing date, they asked for the discovery to be excluded, and

the ALJ improperly did not do so. (ECF 1 at 90-91).

More globally, the Court holds that Plaintiffs have

adequately pleaded that the State Defendants did not enforce the

rules on access to records (Count VII). The State Defendants

characterize those allegations as conclusory because Plaintiffs

make allegations on “information and belief.” “[T]he Third

Circuit has [] recognized that pleading facts upon information

and belief is permitted where the factual information at issue

is within the Defendants' exclusive possession and control.”

Wood v. State of New Jersey, 2016 WL 4544337, at *5 n.5 (D.N.J.

Aug. 31, 2016) (citing In re Rockefeller Ctr. Props., Inc. Sec.

Litig., 311 F.3d 198, 216 (3d Cir. 2002)). Here, Plaintiffs

plead globally regarding the State Defendant’s general practices

that they “rarely if ever enforce a parents’ rights to access

their child’s records even though it states that right

explicitly in the due process case transmittal documents.” (ECF

1 at 134). Plaintiffs would not have facts to separately plead

that allegation at this stage of litigation. Further, given

that Plaintiffs specifically alleged that one of the ALJs

engaged in improper ex parte communications with MTBOE, it is

not far-fetched to think that the State Defendants were not

enforcing the rules on access to records. (See id. at 93). In

addition, Plaintiffs don’t solely base their claim on denial of

access to records on statements pled on information and belief —

they identify specific conduct by MTBOE and the State Defendants

that underlies their claim. (Id. at 133-34 (stating “MTBOE

violated Plaintiffs’ right to access J.A.’s records in

sufficient time prior to a due process hearing as guaranteed by

IDEA and therefore violated the referenced Procedural Safeguard”

and noting that the State Defendants did not remedy that

violation)).

In addition, Plaintiffs have adequately pled that the State

Defendants failed to ensure the independence of the OAL (Count

XI) and that ALJs were adequately trained (Count X). The IDEA

requires both that the due process hearing be conducted by an

impartial hearing officer and that the state receiving federal

funds under the IDEA put in place procedures to make sure that a

fair hearing is conducted. 20 U.S.C. § 1415(f)(3); 34 C.F.R. §

300.511; and N.J.A.C. § 6A:14-2.7(k).

Plaintiffs have alleged that the OAL is so emmeshed in the

NJDOE that they have not been able to get a fair and impartial

hearing.7 They also have alleged that the training of the ALJs

assigned to due process hearings is so lacking that it violates

the requirement that the hearings be conducted by an ALJ with

requisite skill and knowledge so as to be capable of rendering a

timely decision. See 34 C.F.R. § 300.515(a) (states receiving

federal funding “must ensure that not later than 45 days after

the expiration of the 30 day period under § 300.510(b) . . . (1)

A final decision is reached in the hearing; and (2) A copy of

the decision is mailed to each of the parties.”).

The NJDOE has the overarching responsibility to ensure that

the procedures for due process hearings run smoothly without

actually adjudicating disputes itself. The IDEA is organized

such that the ALJs who conduct the due process hearings may not

be NJDOE employees. 20 U.S.C. §1415(f)(3)(A)(i). But that very

same statute makes clear that it is the NJDOE who is responsible

for the infrastructure that creates such impartial due process

hearings. Id. at §1415(f)(1)(A) (“Whenever a complaint has been

received under subsection (b)(6) or (k), the parents or the

7 The State Defendants argue that the argument that ALJs receive

their salaries from the NJDOE is not enough to state a claim

that the OAL is not sufficiently independent. (ECF 33 at 12).

Plaintiffs’ allegations are more complex in that they claim the

prior experience of many ALJs makes them beholden to the NJDOE

and that, in addition to their salaries, the OAL is so

financially intertwined with the NJDOE that there is a conflict

of interest. (ECF 1 at 155-57). Plaintiffs cite statistics on

the outcomes of cases to bolster their claim. (Id.)

local educational agency involved in such complaint shall have

an opportunity for an impartial due process hearing, which shall

be conducted by the State educational agency or by the local

educational agency, as determined by State law or by the State

educational agency.”) Plaintiffs have outlined the training

deficiencies of the ALJs and the ways that the OAL and the NJDOE

are intertwined with sufficient facts to survive a motion to

dismiss. (ECF 1 at 44 (“Upon information and belief, ALJs do not

receive and NJDOE or the OAL provides adequate training or

instruction on IDEA or its regulations or the New Jersey

regulations, specifically the rigors of the 10 Day Peremptory

Hearing Date, the Five-Day Exchange Rule, and the 45 Day Rule,

and therefore do not meet IDEA’s requirements for hearing

officers.”); id. at 155 (“Since the budget and salaries of NJDOE

and OAL employees are subparts of and determined by the larger

budget of the executive branch, they are beholden to the same

pot of money. This creates a personal and/or professional

interest that conflicts with the ALJ’s objectivity in special

education due process hearings.”)) The Court renders no opinion

as to whether these allegations will ultimately be meritorious,

only that they are sufficiently pled to survive a motion to

dismiss.

The State Defendants also argue that Plaintiffs have not

shown a systemic violation of the IDEA.8 The Court disagrees.

First, the State Defendants seem to be overstating the pleading

standard, arguing that Plaintiffs must “demonstrate” the

veracity their claims at this time. (ECF 33 at 19). Plaintiffs

need only state a plausible claim. Malleus, 641 F.3d at 563.

Second, to the extent that the State Defendants are suggesting

that an individual plaintiff cannot prove a systemic violation,

that argument misstates caselaw and fails to understand the

scope of Plaintiffs’ allegations. Reinholdson v. Minnesota, 346

F.3d 847, 851 (8th Cir. 2003) (“[T]rials of those individual

claims may expose issues of systemic violation[.]”) The

touchstone of a systemic violation is that it cannot be remedied

by the administrative process because the issue is so pervasive.

Brach v. Newsom, 2020 WL 6036764, at *8 (C.D. Cal. Aug. 21,

2020) (“A plaintiff alleging a systemic violation is not

entitled to an exception if “it involves only a substantive

claim having to do with limited components of a program, and if

the administrative process is capable of correcting the

problem.”) Plaintiffs have alleged that the problems in how

their due process matter was handled are rooted in such

widespread deficiencies that the system in place is incapable of

remedying their concerns. (See ECF 1at 50). Discovery on their

8 The State Defendants do not clearly tie this argument to any

given count and seem to be making a more global point about the

pleading of systemic violations. (ECF 33 at 19-21).

individual matter certainly could bear out their concerns.

b. Whether Plaintiffs’ IDEA Claims Against State Officials

Must be Dismissed.

The State Defendants’ argument that the counts alleging

violation of the IDEA against state officials must be dismissed

because the IDEA does not allow claims against individual

officials has some support in case law. See Taylor v. Altoona

Area Sch. Dist., 513 F. Supp. 2d 540, 553 (W.D. Pa. 2007)

(discussing the IDEA and stating, “The United States Court of

Appeals for the Third Circuit has recognized that Congress does

not normally seek to impose liability on individuals when it

places conditions on the receipt of federal funds by entities

that employ such individuals.”) (citing Emerson v. Thiel

College, 296 F.3d 184, 190 (3d Cir.2002)); R.S. v. Glen Rock Bd.

of Educ., No. 14-CV-0024 SRC, 2014 WL 7331954, at *5 (D.N.J.

Dec. 19, 2014).

That said, this Court acknowledges that “in many

circumstances it is appropriate for a plaintiff to assert IDEA

and Rehabilitation Act claims against individuals in their

‘official capacities’ as school administrators, school district

personnel, or school board members[.]” New Jersey Prot. &

Advoc., Inc. v. New Jersey Dep't of Educ., 563 F. Supp. 2d 474,

492 (D.N.J. 2008). To be sure, the court in New Jersey Prot. &

Advoc., Inc. did dismiss the claims against the individuals

named in their official capacities as duplicative of the claims

against the state. Id. It may indeed be the case that such

claims will turn out to be duplicative in this matter, but at

this early stage in litigation, the Court is not prepared to

dismiss the claims against the individual defendants on this

ground. With the scope of the liability, if any, that may

actually fall to the NJDOE and the OAL unresolved at this point

in litigation, the Court will not dismiss the claims against the

individual defendants as duplicative. P.V. ex rel. Valentin v.

Sch. Dist. of Philadelphia, 2011 WL 5127850, at *12 (E.D. Pa.

Oct. 31, 2011) (“While some courts have dismissed claims against

individual, official capacity defendants as redundant, they have

done so after satisfying themselves that the remaining entity

defendant(s) were willing to take responsibility for the

individual defendants' action.”)

c. Whether the ALJs Are Entitled to Judicial Immunity.

The State Defendants argue that the ALJs sued in this

matter are protected by judicial immunity and the Court agrees.

Plaintiffs’ principal argument against this is that the law does

not recognize judicial immunity for state ALJs. (ECF 36 at 18-

19). At least one panel of the Third Circuit has recognized

judicial immunity for a state official acting in the capacity of

an ALJ. Savadjian v. Caride, 827 F. App'x 199, 202 (3d Cir.

2020). In addition, judicial immunity as a doctrine has been

understood to broadly insulate judicial officers for their acts

taken in a judicial capacity. See Kaul v. Christie, 372 F.

Supp. 3d 206, 246 (D.N.J. 2019) (“Absolute judicial immunity

applies to all claims, whether official-capacity or personal-

capacity, that are based on judicial acts,” which includes

administrative law judges, and the immunity is only stripped for

“nonjudicial actions” and “actions, though judicial in nature,

taken in the complete absence of all jurisdiction.”) (citing

Mireles v. Waco, 502 U.S. 9, 12 (1991); Dongon v. Banar, 363 F.

App'x 153, 155 (3d Cir. 2010); Raffinee v. Comm'r of Soc. Sec.,

367 F. App'x. 379, 381 (3d Cir. 2010) (citing Butz v. Economou,

438 U.S. 478, 514 (1978)). Accordingly, the claims against the

ALJs will be dismissed with prejudice. Thompson v. Cobham, 2012

WL 2374724, at *2 (D.N.J. 2012) (citing Gary v. Gardner, 445 F.

App’x 465, 467 (3d Cir. 2011) (affirming dismissal with

prejudice of action barred by judicial immunity)).

d. Whether Plaintiffs’ § 1983 Claims Must Be Dismissed.

The Court will dismiss the claims under § 1983 against the

NJDOE and the OAL with prejudice9 because they are arms of the

9 District courts “should freely give leave to amend when justice

so requires.” Schomburg v. Dow Jones & Co., 504 F. App'x 100,

103 (3d Cir. 2012) (citing Rule 15(a)(2)) (internal alterations

omitted). “Thus, leave to amend ordinarily should be denied

only when amendment would be inequitable or futile.” (Id.)

“[T]hese principles apply equally to pro se plaintiffs and those

represented by experienced counsel.” Alston v. Parker, 363 F.3d

229, 235 (3d Cir. 2004). “Futility ‘means that the complaint,

state, and the state as not waived its Eleventh Amendment

immunity. Docherty v. Cape May Cty., 2017 WL 3528979, at *4

(D.N.J. Aug. 15, 2017) (“Thus, the Court dismisses the § 1983

and NJCRA claims for damages against Lanigan in his official

capacity, based on Eleventh Amendment immunity.”); Rashid v.

Lanigan, 2018 WL 3630130, at *10 (D.N.J. July 31, 2018)

(“Plaintiffs’ claims seeking declaratory relief as to, and

monetary damages from, Defendants in their official capacities

are dismissed with prejudice as barred by Eleventh Amendment

immunity[.]”)

And courts in this district have made clear that the NJDOE

and the OAL are arms of the state for Eleventh Amendment

purposes. Wright v. New Jersey/Dep't of Educ., 115 F. Supp. 3d

490, 494 (D.N.J. 2015) (“The Department of Education is

considered an arm of the state government for purposes of

as amended, would fail to state a claim upon which relief could

be granted.’” Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231

(3d Cir. 2011) (quoting Great W. Mining & Min. Co. v. Fox

Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010)). Courts have

held amendment to be inequitable where the plaintiff already had

an opportunity to amend the complaint. Lake v. Arnold, 232 F.3d

360, 374 (3d Cir. 2000) (“[W]e are inclined to give the District

Court even broader discretion when, as here, the court has

already granted the requesting party an opportunity to amend its

complaint.”); McMahon v. Refresh Dental Mgmt., LLC, 2016 WL

7212584, at *11 (W.D. Pa. Dec. 13, 2016) (“The court need not

provide endless opportunities for amendment, especially where

such opportunity already has been enjoyed.”) (internal

alterations and quotation marks omitted). Here the Eleventh

Amendment serves as an absolute bar and amendment of the claims

would be futile.

determining sovereign immunity under the Eleventh Amendment.”);

ASAH v. New Jersey Dep't of Educ., 2017 WL 2829648, at *7

(D.N.J. June 30, 2017) (“For the purposes of the Eleventh

Amendment, the DOE is an arm of the state government.”);

Rodrigues v. Fort Lee Bd. of Educ., 458 F. App'x 124, 127 (3d

Cir. 2011) (“The Office of Administrative Law is a state agency.

. . and is thus immune from suit under the Eleventh

Amendment[.]”). Because Eleventh Amendment immunity bars

Plaintiffs’ claims against the NJDOE and the OAL, the Court will

dismiss that count without leave to amend.

The Court will not, however, dismiss the claim against the

Commissioner at this time. An exception to the Eleventh

Amendment is a suit against an official in their official

capacity seeking prospective injunctive relief. While not

pleaded artfully, Plaintiffs’ complaint essentially asks the

Court to remedy the procedural problems with the dispute

resolution system so that Plaintiffs can get a fair result as

required under the law and perhaps bring other claims. (See ECF

1 at 189(“Defendants have denied Plaintiffs their right to

timely assert other claims because of the delays and systemic

flaws.”)) Where there is an ongoing violation of federal law

and the relief is prospective, the Court may order it. Delaware

River Joint Toll Bridge Comm'n v. Sec'y Pennsylvania Dep't of

Lab. & Indus., 985 F.3d 189, 193-94 (3d Cir. 2021), cert. denied

sub nom. Berrier v. Delaware River Joint Toll Bridge Comm'n, 142

S. Ct. 109 (2021) (determining whether to grant the relief

“requires us to ‘conduct a straightforward inquiry into whether

the complaint alleges an ongoing violation of federal law’ and

whether it ‘seeks relief properly characterized as

prospective.’”) (quoting Verizon Md., Inc. v. Pub. Serv. Comm'n

of Md., 535 U.S. 635, 645 (2002)).

While the State Defendants are correct that the IDEA does

not allow Plaintiffs to use the IDEA to use § 1983 to remedy

violations of the IDEA, it does not bar suit under § 1983 based

on separate substantive rights. First, 20 U.S.C. § 1416(l)

states:

Nothing in this chapter shall be construed to restrict or

limit the rights, procedures, and remedies available under

the Constitution, the Americans with Disabilities Act of

1990, title V of the Rehabilitation Act of 1973, or other

Federal laws protecting the rights of children with

disabilities, except that before the filing of a civil

action under such laws seeking relief that is also

available under this subchapter, the procedures under

subsections (f) and (g) shall be exhausted to the same

extent as would be required had the action been brought

under this subchapter.

Subsection (l) specifically leaves open the avenue for

plaintiffs to sue based on other substantive laws if the relief

sought was distinct from what is available under the IDEA. A.W.

v. Jersey City Pub. Schs., 486 F.3d 791, 798 (3d Cir. 2007) (“By

preserving rights and remedies “under the Constitution,” section

1415 [(l)] does permit plaintiffs to resort to section

1983 for constitutional violations, notwithstanding the

similarity of such claims to those stated directly under IDEA.”)

(emphasis in original). Even though Plaintiffs mention

provisions of the IDEA as background for their § 1983 claim,

they cite to the Fourteenth Amendment as the underlying basis.10

(ECF 1 at 189). Courts have held that there is a property

interest in education and that therefore, prior to the

deprivation of such interest, a plaintiff must be provided with

a meaningful opportunity to be heard prior to the deprivation in

order to comport with the Fourteenth Amendment. Hamilton v.

Radnor Twp., 502 F. Supp. 3d 978, 990 (E.D. Pa. 2020) (“The

Fourteenth Amendment creates a guarantee of fair procedure

whereby an individual can assert that she was deprived of a

life, liberty, or property interest without due process of

law.”) (internal quotation marks omitted); Garcia v. Capistrano

Unified Sch. Dist., 2018 WL 6017009, at *12 (C.D. Cal. Mar. 30,

2018) (“Further, a plaintiff can bring a Section 1983 action

alleging the deprivation of procedural due process in state

special education administrative proceedings.”); K.A. ex rel.

J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356, 367

(M.D. Pa. 2014) (noting property interest in public education);

Abernathy v. Indiana Univ. of Pennsylvania, 2013 WL 3200519, at

10 For reason that are unclear, Plaintiffs also cite to the

Fourth Amendment without further elaboration. And such claim

will be dismissed without prejudice.

*1 (W.D. Pa. June 18, 2013) (noting the need for a meaningful

opportunity to be heard before the deprivation of education);

Dommel Properties, LLC v. Jonestown Bank & Tr. Co., 2013 WL

1149265, at *9 (M.D. Pa. Mar. 19, 2013) (“The fundamental

requirement of due process is the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.”). Thus,

maintaining a separate claim under the Fourteenth Amendment to

be vindicated via § 1983 is in accordance with § 1415(l) so long

as the claim is ripe.11

e. Violation of § 504 and the ADA.

The NJDOE also moves to dismiss Count XVII, violation of §

504, and Count XVIII, violation of the ADA. They argue that

dismissal of Counts XVII and XVIII is appropriate because

“Plaintiffs do not allege that State Defendants excluded J.A.

from a service, program or activity because of J.A.’s

disability.” (ECF 33 at 34). Plaintiffs counter that the State

Defendants retaliated against them for seeking to enforce J.A.’s

education rights by reassigning her case several times and not

enforcing the timing required by law for the progression of her

11 See C.H. v. Cape Henlopen Sch. Dist., 606 F.3d 59, 73 n.13 (3d

Cir. 2010) (“As a matter of chronology, a state administrative

complaint could not seek relief for a due process violation that

had not yet occurred. Thus, any claim for deprivation of

procedural due process in the state administrative proceedings

cannot be redressed by the remedial provisions of the IDEA; the

aggrieved party must file a separate § 1983 action in the

District Court, supported by appropriate factual allegations.”).

cases. (ECF 36 at 27).

To state a claim of violation Title II of the ADA or § 504,

“a plaintiff must show that he is a qualified individual with a

disability; that he was excluded from a service, program, or

activity of a public entity; and that he was excluded because of

his disability.” Disability Rts. New Jersey, Inc. v. Comm'r,

New Jersey Dep't of Hum. Servs., 796 F.3d 293, 301 (3d Cir.

2015); Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 288

(3d Cir. 2019) (noting that the substantive standards for both

claims are the same). The parties do not appear to dispute that

J.A. is a qualified individual with a disability. Rather, the

crux of the dispute is whether Plaintiffs were deprived of

something they otherwise were entitled to as a result of J.A.’s

disability. The complaint clearly outlines the NJDOE and OAL’s

responsibilities to provide impartial due process hearings and

that, for instance, “[u]pon information and belief, ALJ Wilson

issued the May 1, 2018 Order out of spite and in retaliation for

Plaintiffs asserting objections based on the 45 Day Rule.” (ECF

1 at 86). This, with the rest of the allegations in the

complaint, is enough to satisfy the Court that Plaintiffs are

entitled to proceed with their ADA and § 504 claims.

Indeed, the Supreme Court has noted that an action may lie

for violation of the ADA and § 504 where the facts arise out of

an alleged violation of the IDEA. Fry v. Napoleon Cmty. Sch.,

137 S. Ct. 743, 750, 197 L. Ed. 2d 46 (2017) (“[T]he IDEA does

not prevent a plaintiff from asserting claims under such laws

even if. . . those claims allege the denial of an appropriate

public education (much as an IDEA claim would).”). Plaintiffs’

complaint alleges that the NJDOE’s flawed procedures pervaded

the dispute resolution system to the extent that they

effectively barred J.A. from receiving the same educational

benefits as other children and retaliated against Plaintiffs for

trying to assert their rights. (See ECF 1 at 89).

The State Defendants characterize the allegations of

violation of § 504 and the ADA as conclusory, focusing on

statements like the above-quoted allegations. Plaintiffs

certainly could have pled their claims more artfully, neatly

tying together how the State Defendants’ flawed procedures

constituted discrimination or some sort of disparate impact in

compact phraseology. But this Court reads the allegations in

the complaint as a whole and the allegations read in that light

tell a story of due process procedures so deficient that

Plaintiffs were not able to place their child in the right

educational setting or seek relief without retaliation, a

benefit that non-disabled children were readily receiving.

Destro v. Hackensack Water Co., 2009 WL 3681903, at *2 (D.N.J.

Nov. 2, 2009) (“The Court must consider the Complaint in its

entirety and review the allegations as a whole and in context.”)

Thus, the Court will not dismiss the claims based on § 504 and

the ADA.

f. Whether Federal Preemption Applies.

Plaintiffs assert a count for “federal preemption”,

contending that there “is a direct conflict between the scheme

under federal IDEA law for resolving special education disputes

and NJDOE’s system under the New Jersey Administrative Code for

how New Jersey handles special education disputes

as discussed at length in preceding allegations of this

Complaint.” (ECF 1 at 168.) The State Defendants argue that

Plaintiffs’ contention that the briefing schedule for motions

and the refusal by State Defendants to enforce the 10 day

Peremptory Hearing regulation both directly conflict with the

IDEA fails because neither conflicts with the IDEA. The State

Defendants argue that the IDEA and New Jersey regulations do not

provide for guidelines regarding motion practice in due process

hearings, and the 10-day rule is not contained in the IDEA.

Thus, the State Defendants argue that the IDEA cannot preempt

state law on these issues.

The Court finds that any conflicts between the State’s

procedures as they relate to the IDEA will be more appropriately

resolved after discovery regarding those procedures as a whole,

and a fuller record is provided upon which this Court may opine

on the viability of Plaintiffs’ federal preemption count. See,

e.g., Virtual Studios v. Couristan, Inc., 2011 WL 1871106, at *3

(D.N.J. 2011) (denying the defendant’s argument that the

plaintiff’s state law claim was preempted by federal copyright

law because the court was required to perform a qualitative

analysis to make that determination, and finding that it would

be in a far better position to make such a qualitative

assessment once the record in the matter had been more fully

developed, rather solely on the plaintiff’s complaint).

g. Whether Plaintiffs’ Claim for Malicious Abuse of

Process May Proceed.

The State Defendants contend that Plaintiffs’ state law

claim for malicious abuse of process necessarily fails because

it is barred by the Eleventh Amendment. Plaintiffs argue that

that it is so intertwined with the federal issues in this case

that the Court may exercise supplemental jurisdiction over it.

Plaintiffs miss the mark in making that argument. “[T]he

supplemental jurisdiction statute, 28 U.S.C. § 1367, does not

authorize district courts to exercise jurisdiction over claims

against non-consenting States.” Balsam v. Sec'y of New Jersey,

607 F. App'x 177, 183 (3d Cir. 2015). Further, the Supreme

Court has made clear that the carveout in Ex parte Young, 209

U.S. 123, 159, 28 S. Ct. 441, 454, 52 L. Ed. 714 (1908) that

allows suit against state officials for ongoing violations of

federal law does not extend to claims based on state law.

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104

S. Ct. 900, 911, 79 L. Ed. 2d 67 (1984) (“We conclude

that Young and Edelman are inapplicable in a suit against state

officials on the basis of state law.”) Thus, the Court will

dismiss Count XX against the State Defendants with prejudice.

h. Whether Plaintiffs’ Legal Error Claims Must be

Dismissed.

The State Defendants are correct that a pure claim based on

legal error is more appropriately handled as an appeal than as a

separate count. The provision of the IDEA allowing appeal of

the prior decision is clear that the scope of any appeal of the

underlying action is cabined to what was in the due process

complaint. 20 U.S.C.A. § 1415(h)(2)(A) (“Any party aggrieved

by the findings and decision made under subsection (f) or (k)

who does not have the right to an appeal under subsection (g),

and any party aggrieved by the findings and decision made under

this subsection, shall have the right to bring a civil action

with respect to the complaint presented pursuant to this

section, which action may be brought in any State court of

competent jurisdiction or in a district court of the United

States, without regard to the amount in controversy.”).

Essentially, § 1415(h)(2)(A) makes clear that a party

appealing the result of a due process proceeding must base that

appeal on the underlying complaint filed in that proceeding. To

be clear, this Court does not hold that Plaintiffs may not

separately sue the State Defendants for conduct related to the

handling of that proceeding, as they have done here. Rather,

the scope of a substantive appeal does not pertain directly to

the conduct of the State Defendants. Thus, the Court will

dismiss Count II.

CONCLUSION

For the reasons expressed in this Opinion, the State

Defendants’ motion to dismiss (ECF 33) will be granted in part

and denied in part.

An appropriate Order will be entered.

Date: March 30, 2022 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.