# J.A. v. MONROE TOWNSHIP BOARD OF EDUCATION

> District Court, D. New Jersey · March 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10273050

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10273050

## How later opinions describe it (automated extraction)

- affirming dismissal with prejudice of action barred by judicial immunity

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273050. Public record. Not legal advice.