J.A. v. MONROE TOWNSHIP BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

J.A., individually and on No. 1:20-cv-09498-NLH-MJS

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; MARYANN

BOGAN, Administrative Law

Judge; JOSEPH A. ASCIONE,

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

KERRY SORANNO

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 23). 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

Township Board of Education (“MTBOE”). J.A., who was born in

May 2008, has the primary diagnosis of autism with other

secondary diagnoses, and she is eligible for special education

1 The State Defendants the New Jersey Department of Education

(“NJDOE”), the Commissioner of Education in their official

capacity, the New Jersey Office of Administrative Law (“NJOAL”),

Maryann Bogan, Administrative Law Judge in her official

capacity, Joseph A. Ascione, Administrative Law Judge in his

official capacity, and Does 1-250 “Similarly Situated

Administrative Law Judges,” in their official capacity. (See ECF

23).

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

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

and related services under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1415(i)(3)(A). J.A. lives

with her parents, J.A. and J.A., in Gloucester County, New

Jersey.

In May 2016, J.A. first received an individualized

education program (“IEP”) at her elementary school in the MTBOE

school district. Plaintiffs’ claims arise from a due process

complaint3 filed with the NJDOE regarding various issues with

J.A.’s IEP. The crux of the instant dispute regarding the due

process complaint stems from MTBOE’s refusal to pay for an

Independent Education Evaluation (“IEE”) regarding J.A.’s

auditory potential. (Id. at 42). At the time, J.A. was

undergoing homebound instruction and the IEE was sought to see

if there was a way that J.A. could return to in-school

instruction. (Id. at 42). Plaintiffs allege that “[i]nstead of

funding the IEE, MTBOE filed a due process complaint with [the

NJDOE] on March 5, 2020 against the J.A. Family seeking to deny

the IEE[.]” (Id. at 43).

Plaintiffs assert numerous claims against the State

Defendants for their alleged systemic violations of this

procedure. The following timeline of events is relevant to

3 Plaintiffs have been involved in other due process

proceedings, for which civil actions are currently before this

Court. See J.A. v. State of New Jersey, 1:18-cv-09580-NLH-MJS;

J.A. v. State of New Jersey, 1:21-cv-06283-NLH-MJS.

Plaintiffs’ claims against the State Defendants, and the State

Defendants’ instant motion to dismiss:

•

On February 17, 2020, Plaintiffs sent a letter to MTBOE

demanding that MTBOE fund the IEE pursuant to IDEA’s

regulations, 34 C.F.R. § 300.502(b)(1).4 (ECF 1 at 42).

•

On March 5, 2020, MTBOE filed a due process complaint with

the NJDOE seeking to deny the IEE. (Id.)

•

On March 14, 2020, Plaintiffs timely filed their answer to

the due process complaint. (Id. at 43).

•

Although the 30-day resolution period expired on April 5,

2020, the parties agreed to a 60-day extension due to the

COVID-19 pandemic. (Id.)

•

On May 19, 2020, Plaintiffs and MTBOE participated in a

resolution meeting via conference call. The meeting failed

4 34 C.F.R. § 300.502(b)(1) provides in relevant part, “A parent

has the right to an independent educational evaluation at public

expense if the parent disagrees with an evaluation obtained by

the public agency, . . .[and] [i]f a parent requests an

independent educational evaluation at public expense, the public

agency must, without unnecessary delay, either . . . File a due

process complaint to request a hearing to show that its

evaluation is appropriate; or Ensure that an independent

educational evaluation is provided at public expense . . . .”

The purpose of the IEE is to determine if J.A.’s Central

Auditory Processing Disorder (“CAPD”) is neurological in nature

and what alternative therapies or accommodations can be made in

the school environment so that J.A. could return to the public

school from homebound instruction, which was instituted in

September 2019.

to resolve the case, and the parties notified the NJDOE.

•

The NJDOE transmitted the case to the OAL on May 19, 2020,

and the OAL issued a Hearing Notice to the parties setting

a hearing date of June 4, 2020, and assigning the case to

ALJ Bogan. (Id.)

•

Plaintiffs requested a “brief adjournment” of the June 4,

2020 hearing date due to a conflict, and with the consent

of MTBOE, the case was rescheduled by the OAL for a hearing

on June 18, 2020 with the issuance of an amended Hearing

Notice. (Id. at 45).

•

The Hearing Notice notified the parties of the Five Day

Exchange Rule, which allows either party to a due process

hearing to move to exclude evidence that is not produced at

least five days prior to a hearing. (Id. at 46); see 20

U.S.C. § 1415(f)(2)(A).

•

Plaintiffs requested from MTBOE access to J.A.’s records

and that the documents be produced by June 8, 2020. On

June 9, 2020, however, MTBOE responded that producing

documents by June 8th was unreasonable and that there was no

urgency in the matter. (ECF 1 at 46).

•

Plaintiffs hand-delivered their Five Day Exchange rule

documents and list of witnesses to MTBOE on June 11, 2020

at approximately 1:45 p.m. and also sent confirmation via

email on that same date at 4:45 p.m. (Id. at 47).

•

On June 12, 2020, when MTBOE still had not produced any

materials, Plaintiffs filed a motion to bar evidence

against MTBOE premised upon MTBOE’s failure to abide by the

Five Day Exchange Rule. MTBOE did not produce any

materials prior to the hearing on June 18, 2020. (Id.)

•

In an email, the OAL informed Plaintiffs that the ALJ would

consider Plaintiffs’ motion on June 18, 2020. Plaintiffs

informed the OAL that because June 18, 2020 was a hearing

date as indicated in the Hearing Notice, their motion

should be decided prior to June 18, 2020. The ALJ’s

administrative assistant responded, “In accordance with my

email dated June 11, 2020 . . . this case is scheduled for

a settlement conference on June 18, 2020.” (Id. at 47-48).

•

Plaintiffs replied, “Respondents demand that 6/18 be a

hearing or we will have to seek relief from either the OAL,

NJDOE and/or the federal court.” (Id. at 48).

•

On June 12, 2020, in what Plaintiffs describe as

retaliation for asserting their rights, the OAL reassigned

the case to Defendant ALJ Ascione and set a prehearing

conference for June 16, 2020. (Id. at 49, 128).

•

At the conference, ALJ Ascione asked, among other things,

when the parties would be ready for a hearing, and

Plaintiffs responded, “Thursday, June 18.” ALJ Ascione

stated, “That is disingenuous based on the customs of the

OAL.” (Id. at 50).

•

ALJ Ascione set a briefing schedule, and a hearing for

July 9 and 10, 2020 via Zoom. (Id. at 51).

•

On July 1, 2020, ALJ Ascione issued a letter ruling on

several matters, to which Plaintiffs responded the next day

outlining ALJ Ascione’s errors. (Id. at 52-53).

•

Between July 3 and July 8, 2020, Plaintiffs renewed several

motions. (Id. at 53).

•

Without ruling on Plaintiffs’ renewed motions, ALJ Ascione

and the parties proceeded with the hearing on July 9, 2020.

(Id. at 53).

•

On July 16, 2020, ALJ Ascione issued his decision. (Id. at

53).

Plaintiffs filed this case before this Court on July 28,

2020. (Id.) The complaint contains counts against MTBOE and

counts against some or all of the State Defendants. The court

will recount the counts that name the State Defendants as those

are the ones relevant to this motion to dismiss. They are:

Count I (systemic violation of the ten day peremptory hearing

date against the State Defendants ); Count II (systemic

violation of the Five Day Exchange Rule by the State

Defendants); Count III (systemic violation of the adjournment

rule by the State Defendants); Count IV (systemic violation of

the resolution meeting regulation by the NJDOE); Count V

(systemic violation of the access to records procedural

safeguard by the State Defendants); Count VI (systemic violation

of discovery rules by the State Defendants); Count VII (systemic

violation of the rules of evidence by the State Defendants);

Count VIII (systemic violation of the New Jersey regulations in

special education due process cases by the State Defendants);

Count IX (systemic violation of the hearing officer

qualifications by the State Defendants); Count X (legal error on

the burden of proof in the due process case by the NJDOE and ALJ

Ascione); Count XI (systemic violation of the independence of

the adjudicating body of special education disputes by the State

Defendants); Count XII (federal preemption against the State

Defendants); Count XIII (violation of § 504 of the

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

NJDOE, OAL, ALJ Bogan and ALJ Ascione); Count XIV (violation of

Title II of the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. (the “ADA”) by the NJDOE, OAL, ALJ Bogan

and ALJ Ascione); Count XV (systemic civil rights violations

under 42 U.S.C.§ 1983 by the NJDOE, OAL, ALJ Bogan and ALJ

Ascione); and Count XVI (legal error on the denial of IEE by ALJ

Ascione).

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 I-VIII, 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 III

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 for an adjournment so long as to account for the

delay in having their hearing or receiving a final decision. 34

C.F.R. § 300.515(a); (ECF 1 at 45, 65-67).

In the same vein, Plaintiffs have adequately pled in Count

II 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 51). More

globally, the Court holds that Plaintiffs have adequately

pleaded that the State Defendants did not enforce the rules on

access to records (Count V).

The State Defendants generally quibble that with the access

to records allegations on the grounds that MTBOE produced

documents well before the July 9, 2020 hearing. (ECF 23 at 16).

But the State Defendants are moving the reference mark.

Plaintiffs plead that they did not receive discovery until after

the June 18, 2020 hearing date. It appears that the State

Defendants are trying to argue that because they did not

actually hold a hearing on June 18, 2020, Plaintiffs were not

denied access to records. Ironically, the State Defendants are

using their allegedly illegal practice of holding a settlement

conference instead of a hearing on the first hearing date as

justification for failing to produce discovery as required by

law. This seems perverse. The IDEA and its regulations make

clear that access to records is paramount before a hearing. 34

C.F.R. § 300.613(a) (“The agency must comply with a request

without unnecessary delay and before any meeting regarding an

IEP, or any hearing[.]” Plaintiffs allegations that they were

not given records in a reasonable amount of time, particularly

because of the violation of the Five Day Exchange Rule passes

muster. See 20 U.S.C. § 1415(f)(2)(A).

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 IX). 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. Beyond just citing the fact that ALJs receive their

salaries from the state, Plaintiffs point to the past

experiences of the ALJs as advocates for educators and not

parents, and the fact that the source of the NJDOE and OAL’s

budget creates a conflict of interest. (ECF 1 at 116-117). At

this point, the Court is satisfied that Plaintiffs are entitled

to discovery on that claim.

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.”); (ECF 1 at 33-

34).

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

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 factual detail to survive a

motion to dismiss. (ECF 1 at 33-34 (“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 116-17 (“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.5 The Court disagrees.

First, the State Defendants seem to overstate the pleading

standard, arguing that Plaintiffs must “demonstrate” the

veracity their claims at this time. (ECF 23 at 1-2).

5 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 23 at 15).

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 widespread deficiencies

in a system unable to remedy their concerns. (See ECF 1 at 31)

(discussing the OAL’s widespread practice of holding settlement

conferences instead of hearings upon receiving a case from the

NJDOE). Discovery on their individual matter certainly could

bear out their concerns.6

6 The State Defendants are correct that Count IV does not allege

a violation of the IDEA in the sense that it does not cite

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., 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

directly to the federal statute or its implementing regulations.

However, it does refer to the New Jersey regulations

implementing the IDEA. The Third Circuit has held that such

claims are actionable. Pennsylvania Fed'n of Sportsmen's Clubs,

Inc. v. Hess, 297 F.3d 310, 327 (3d Cir. 2002) (“[T]he

Individuals with Disabilities Education Act (“IDEA”), formerly

known as the Education of the Handicapped Act, explicitly

incorporate[s] New Jersey educational standards.”) (citing Geis

v. Board of Educ. of Parsippany–Troy Hills, 774 F.2d 575 (3d

Cir.1985)).

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 24 at 24-

26). 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 prejudice7 because they are arms of the

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[.]”)

7 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,

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.

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

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 claim against the NJDOE and the OAL without leave

to amend.

An exception to the Eleventh Amendment is a suit against an

official in their official capacity seeking prospective

injunctive relief. 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)).

Notably, Count XV does not plead the Commissioner as a

defendant. The Court will dismiss Count XV without prejudice

should Plaintiffs want to amend the complaint to name the

Commissioner in their official capacity.

e. Violation of § 504 and the ADA.

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

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

dismissal of Counts XIII and XIV 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 23 at 36). 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

cases. (ECF 24 at 29).

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 example, Plaintiffs’ motion to bar evidence was denied

in retaliation for their insistence that they have a hearing

approximately ten days after their case was sent to the OAL.

(ECF 1 at 128). This, with the rest of the allegations in the

complaint, is sufficient 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 128).

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 124.) 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’ 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 by 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, the Court does not hold here that Plaintiffs may not

bring separate claims against the State Defendants for conduct

related to the process of adjudicating due process hearings writ

large, only that the challenge to a particular administrative

decision does not state a direct claim against the State

Defendants only the adverse party in the original due process

complaint, here, MTBOE. Thus, the Court will dismiss Count X

against the NJDOE.8

CONCLUSION

For the reasons expressed in this Opinion, the State

Defendants’ motion to dismiss (ECF 23) 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.

8 Count XVI also is a legal error claim against ALJ Ascione and

MTBOE. Because the Court dismisses the claims against the ALJs

on the grounds of judicial immunity, it need not reach the legal

error claim against ALJ Ascione on that count. Similarly, the

court need not consider Count XVI as it relates to MTBOE because

they have not joined in this motion practice.