THE INNISFREE FOUNDATION, Inc. v. NEW JERSEY DEPARTMENT OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

THE INNISFREE FOUNDATION, No. 1:21-cv-17672-NLH-MJS

INC.,

OPINION

Plaintiff,

V.

NEW JERSEY DEPARTMENT OF

EDUCATION; ANGELICA

ALLEN MCMILLAN, in her

official capacity as

Commissioner of Education and

JEANNETTE LARKINS, in her

official capacity as

Records Custodian,

Defendants.

JEFFREY IAN WASSERMAN

WASSERMAN LEGAL LLC

1200 ROUTE 22 EAST

SUITE 2000, #2238

BRIDGEWATER, NJ 08807

Counsel for Plaintiff

MICHAL CZARNECKI

LAURIE LEE FICHERA

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET - P.O. BOX 112

TRENTON, NJ 08625

Counsel for Defendants

HILLMAN, District Judge

Currently before the Court is the Motion to Dismiss of

Defendants New Jersey Department of Education (“NJDOE”),

Angelica Allen-McMillan, in her official capacity as

Commissioner of Education (the “Commissioner”), and Jeannette

Larkins, in her official capacity as Records Custodian (the

“Records Custodian”)(collectively, “Defendants”). (ECF 18).

Defendants seek dismissal of a complaint filed by The Innisfree

Foundation, Inc. (“Plaintiff”). For the reasons that follow,

Defendants’ motion will be granted.

BACKGROUND

I. The IDEA

Though Plaintiff presents claims under laws other than the

Individuals with Disabilities Education Act (the “IDEA”), 20

U.S.C. § 1400, et seq., Plaintiff’s primary assertion for this

Court’s subject matter jurisdiction centers on the Defendants’

alleged failure to honor a mandatory public disclosure

obligation found in the IDEA. To place this claim in context, a

threshold understanding of the IDEA is necessary in order to

understand the factual allegations that underly the instant

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

IDEA as a statutory and regulatory scheme before discussing the

factual and procedural background in this matter.

Congress enacted the IDEA to, among other things, ensure

that “the rights of children with disabilities and parents of

such children are protected . . . .” 20 U.S.C. § 1400(d)(1)(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); § 1415(a). One such procedural safeguard provides

standards for adjudicating disputes about whether a school has

adequately provided a FAPE. This administrative process begins

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 further 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.”). 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).

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 Office

of Administrative Law (“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) (stating

that the 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.”

As noted above, the 30-day resolution period and the 45-Day

Rule are part and parcel of a larger set of the “procedural

safeguards” Congress included in the IDEA to ensure that public

schools adequately provide a FAPE and that the rights of

disabled students and their parents are not infringed. Another

procedural safeguard, one at the heart of this matter, is a

mandatory provision that parties to a due process hearing, and

derivatively the larger public, have a right to a written

decision by the agency or person adjudicating a due process

complaint. 20 U.S.C. § 1415(h)(4).

With that overview, the Court turns to Plaintiff’s

allegations.

II. Facts Salient to the Motion to Dismiss

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. Plaintiff is a non-profit

organization whose mission is to serve families in New Jersey.

(ECF 1 at 3). In particular, Plaintiff alleges that one key

group that makes up its constituent base is families with

disabled children for whom it hopes to secure the best possible

educational experience. (Id.). Plaintiff states that at all

times relevant to the events in its Complaint, it was serving at

least one family with a disabled child. (Id.).

Plaintiff states that on May 13, 2021, it sent a public

records request under the New Jersey Open Public Records Act,

N.J.S.A. 47:1A-1, et seq., (“OPRA”) to NJDOE seeking written

decisions from the OAL concerning any issue before it, including

orders approving or enforcing settlements, as well as civil

court decisions from a federal or state court issued on appeal

from an administrative proceeding. (Id. at 8). Plaintiff

further alleges that on July 30, 2021, it received an email from

the Records Custodian indicating that NJDOE would only be

providing final decisions issued after a fully adjudicated

hearing before the OAL. (Id. at 9). Plaintiff responded via

email on August 5, 2021, again demanding the requested documents

be produced. (Id.). It also indicated that NJDOE failed to

disclose final decisions made prior to a due process hearing,

interlocutory decisions made in advance of a due process

hearing, and decisions approving settlements with the settlement

agreement included on its website as required by 20 U.S.C. §

1415(h)(4) and N.J.S.A. 18A:46-1.2. (Id.). By September 24,

2021, discussions between Plaintiff and NJDOE had broken down

and NJDOE reiterated that it would only be producing final

decisions. (Id.).

Thereafter, on September 27, 2021, Plaintiff commenced the

instant action with the filing of the Complaint. (See generally

id.) Plaintiff contends that Defendants were required to

produce the requested records under the IDEA, OPRA, and New

Jersey’s Common Law Right of Access. (Id. at 10-12).

Plaintiff presents six counts on which it contends that it

is entitled to relief: (1) declaration that NJDOE violated the

IDEA under the Declaratory Judgment Act, 28 U.S.C. § 2201, et

seq.; (2) violation of the right to access under the IDEA, 20

U.S.C. § 1415; (3) violation of OPRA, N.J.S.A. 47:1A-1, et seq.;

(4) violation of the New Jersey common law right to access; (5)

injunctive relief against the Commissioner under 42 U.S.C. §

1983; and (6) violation of the New Jersey Civil Rights Act,

N.J.S.A. 10:6–2, et seq. The Court addresses Defendants’ motion

to dismiss against this procedural and factual backdrop.

DISCUSSION

I. 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) and 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 ‘tak[e] 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) “whe[n] 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)

(alterations in original) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675, 679 (2009)).

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’ . . . .”) (citation omitted); 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 Defendants’ motion to the extent it

challenges Plaintiff’s 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. (alteration in original) (quoting Const. 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.

II. Analysis

The Court must first determine whether Plaintiff has

alleged claims that allow the Court to exercise federal question

jurisdiction over the federal claims and supplemental

jurisdiction over the state law claims. The Court holds that

Plaintiff has not alleged a viable federal question. Therefore,

the Court lacks supplemental jurisdiction to opine on the state

law claims. There are two components to this conclusion.

First, this Plaintiff does not have standing to bring a claim

under the IDEA. Second, and accordingly, Plaintiff has failed

to state a claim under 42 U.S.C. § 1983.

A. Standing to Bring the IDEA Claim.

There are two types of standing salient to this analysis,

constitutional standing and statutory standing. Constitutional

standing comes from the requirement under Article III of the

Constitution that federal courts only hear “cases and

controversies.” Bank of Am. Corp. v. City of Miami, 581 U.S.

189, 196 (2017) (“To satisfy the Constitution's restriction of

this Court's jurisdiction to ‘Cases’ and ‘Controversies,’ Art.

III, § 2, a plaintiff must demonstrate constitutional

standing.”). There are three components to constitutional

standing. Id. First, the plaintiff must have suffered an

“injury-in-fact that is concrete and particularized and actual

or imminent, as opposed to conjectural or hypothetical.”

Edmonson v. Lincoln Nat. Life Ins. Co., 725 F.3d 406, 415 (3d

Cir. 2013) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560

(1992)). Second, the injury must be fairly traceable to conduct

of the defendant and not some independent third-party. Id.

“Third, it must be likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision.” Id.

(quoting Lujan, 504 U.S. at 560).

Even if constitutional standing is satisfied, where it is

not clear that Congress has granted a right of action to the

plaintiff, the Court must undergo an analysis of statutory

standing. This question involves determination as to whether

the plaintiff “has a cause of action under the statute.”

Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S.

118, 128 (2014). In undertaking this inquiry, the Court “do[es]

not ask whether in [its] judgment Congress should have

authorized [a plaintiff’s] suit, but whether Congress in fact

did so.” Id. (emphasis in original). The Supreme Court has

stated that this inquiry requires the use of traditional tools

of statutory interpretation to determine whether the plaintiff

is in the “zone of interests” such that “a legislatively

conferred cause of action encompasses a particular plaintiff's

claim.” Id. at 127.

Congressional intent is the touchstone in determining

whether Congress has created a private right of action for a

plaintiff or class of plaintiffs. Courtney v. Ivanov, 41 F.

Supp. 3d 453, 458 (W.D. Pa. 2014). Without statutory intent

from Congress, “a cause of action does not exist and courts may

not create one, no matter how desirable that might be as a

policy matter, or how compatible with the statute.” Alexander

v. Sandoval, 532 U.S. 275, 286–87 (2001). “The judicial task is

to interpret the statute Congress has passed to determine

whether it displays an intent to create not just a private right

but also a private remedy.” Id. at 286.

Using this framework, the Court first looks to see if this

Plaintiff has standing under the IDEA. Plaintiff proffers 20

U.S.C. § 1415(h)(4) as the authority for its right to sue. (ECF

1 at 8). Section 1415(h) reads:

Any party to a hearing conducted pursuant to subsection

(f) or (k), or an appeal conducted pursuant to subsection

(g), shall be accorded . . . (4) the right to written,

or, at the option of the parents, electronic findings of

fact and decisions, which findings and decisions (A)

shall be made available to the public consistent with

the requirements of section 1417(b) of this title

(relating to the confidentiality of data, information,

and records). . . .

Id.

Plaintiff’s contention is that the language “shall be made

available to the public” gives them the right to sue as they are

an aggrieved member of the public who did not receive the

“findings of fact and decisions” as requested. (ECF 25 at 15).

The Court holds that Plaintiff does have constitutional

standing. First, Plaintiff has alleged that it has suffered an

injury in fact in that it specifically alleges that it was

deprived of records to which, as a member of the public, it

should have had access as decreed by Congress. (ECF 1 at 2).

This satisfies the first prong of the constitutional standing

analysis that a plaintiff allege a concrete or imminent injury

in fact. Edmonson, 725 F.3d at 415. Second, Plaintiff clearly

outlines how the alleged injury is traceable to Defendants in

that Plaintiff explains how NJDOE had custody of the requested

records and has affirmatively refused to produce them. (ECF 1

at 8-9). Thus, the second prong is also satisfied. Edmonson,

725 F.3d at 415.

The third and final requirement of constitutional standing,

redressability by this Court, is also satisfied, albeit on a

more tenuous basis. For redressability to be satisfied, this

Court must have the authority to order the requested relief.

Bank of Am. Corp., 137 S. Ct. at 1302. Plaintiff is asking the

Court for an order declaring that NJDOE has violated the IDEA

and various New Jersey laws and compelling NJDOE to publish or

produce the requested documents. (See generally ECF 1). As

outlined below, the Court’s authority to provide such relief

cannot come directly from the IDEA. However, this Court could

envision an order it could properly issue that would provide the

relief requested. Toll Bros. v. Twp. of Readington, 555 F.3d

131, 143 (3d Cir. 2009) (holding that where a hypothetical order

from the court granting the requested relief would be

substantially likely to redress a plaintiff’s injury, the third

prong of standing would be satisfied).

Even if Plaintiff has constitutional standing, the Court

must also find that there is statutory standing for Plaintiff to

bring its claim under the IDEA. First, in looking at section

1415(h)(4) the Court notes that there is no explicit grant to

the public of a right to sue. The provision states that

findings and decisions “shall be made available to the public”

but does not say anything about a mechanism for the public to be

able to enforce the provisioning of records from due process

hearings.

That does not end the inquiry, though. As the Supreme

Court has made clear, the key is the intent of Congress.

Alexander, 532 U.S. at 286. This requires a more comprehensive

and searching view of the IDEA as a statutory scheme to

determine if such intent exists. As noted, § 1415, entitled

“Procedural Safeguards” primarily contemplates safeguards for

parents and their children, and other than the passing reference

cited by the Plaintiff, no one else. Section 1415(a)

specifically mandates that the state agencies receiving funding

under the IDEA develop procedures “to ensure that children with

disabilities and their parents are guaranteed procedural

safeguards . . . .” 20 U.S.C.A. § 1415(a). In terms of the

statute’s explicit grant of the right to file a civil action, §

1415(i)(2)(A), that section limits the parties who can file an

action in court to “[a]ny 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 . . . .”

20 U.S.C. § 1415(i)(2)(A).

Unlike parents and their disabled children, Plaintiff is

not an “aggrieved party” by a decision made under subsection

(f), which deals with decisions made by hearing officers at the

OAL in due process hearings or (k) which deals with placement of

a child in an alternative educational setting by school

personnel. There is no reading of the grant of authority to

file a civil action in subsection (i) that extends beyond those

directly affected by the due process hearings for placement of

students, specifically parents and students. An entity that

makes a records request cannot reasonably be read to fit into

that grant of a cause of action by Congress.

The Court holds that where Congress has shown its ability

to clearly delineate a cause of action under the IDEA, the

negative implication canon has particular salience. The Supreme

Court has succinctly described the canon as “[t]he expression of

one thing implies the exclusion of others . . . .” Jennings v.

Rodriguez, 138 S. Ct. 830, 844 (2018) (citing A. Scalia & B.

Garner, Reading Law 107 (2012)). The canon is context dependent

in that it can be overcome by “contrary indications that

adopting a particular rule or statute was probably not meant to

signal any exclusion . . . .” Marx v. Gen. Revenue Corp., 568

U.S. 371, 381 (2013) (quoting United States v. Vonn, 535 U.S.

55, 65 (2002)). Proper application of the canon also requires a

court to determine that “it is fair to suppose that Congress

considered the unnamed possibility and meant to say no to it . .

. .” Id. (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149,

168 (2003)).

Here, Congress included explicit language in § 1415(i)

defining who is an aggrieved party able to commence a civil

action. By the language of the statute, such aggrieved persons

are only those who are complaining of the outcome of due process

hearings or alternative educational placements to which they

were parties. The public, as mentioned in the adjacent

subsection § 1415(h), tellingly is not characterized as an

aggrieved party. Rather, the public only receives a passive

mention as a group to whom findings and decisions shall be

available. Looking at the language leading up to the mention of

the public in subsection (h), it is clear that the safeguards in

(h), including publication to the public, are meant to protect

parties to due process proceedings. The beginning of (h) begins

by framing its safeguards as being “accorded” for parties to

hearings or appeals. 20 U.S.C. § 1415(h) (“Any party to a

hearing conducted pursuant to subsection (f) or (k), or an

appeal conducted pursuant to subsection (g), shall be accorded .

. . .”). The Court will not read in a right of action for the

public where Congress has not expressed an intent to create one.1

City of Phila. v. Sessions, 280 F. Supp. 3d 579, 617 (E.D. Pa.

Nov. 15, 2017) (“Where Congress includes particular language in

one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts

1 This conclusion is bolstered by the available legislative

history for the 2004 amendments to the IDEA. The Third Circuit

has made clear that “[l]egislative history is only an

appropriate aid to statutory interpretation when the disputed

statute is ambiguous.” United States v. Kouevi, 698 F.3d 126,

133 (3d Cir. 2012). Based on the foregoing analysis, the Court

finds the text of § 1415 straightforward on its own. To the

extent that there is any ambiguity, though, the Court’s

understanding of the statutory text is consistent with the

legislative history. Senate Report 108-85 which was submitted

by the Committee on Health, Education, Labor, and Pensions on

November 3, 2003 describes the purpose of § 1415(h) as listing

“the procedural safeguards rights that are available to any to a

due process hearing or an appeal[.]” S. REP. NO. 108-185, at 70

(2003). It describes § 1415(i) as a mechanism to file suit for

“any party aggrieved by the findings and decision in a hearing.”

Id. Nothing in this history foreshadows a Congressional intent

to confer a right of action on members of the public who request

records of hearings and finds the legislative history consistent

with its interpretation of the statutory text. In re Pittsburgh

& Lake Erie Props., Inc., 290 F.3d 516, 520 (3d Cir. 2002)

(“Although we need go no further than the text of Section 103(h)

together with the text and structure of Subchapter IV in order

to determine the former's meaning, we also note that

the legislative history and our prior caselaw are

both consistent with this reading.”).

intentionally and purposely in the disparate inclusion or

exclusion.”(quoting Russello v. United States, 464 U.S. 16, 23

(1983))); see also Aponik v. Verizon Pa. Inc., 106 F. Supp. 3d

619, 624 (E.D. Pa. May 21, 2015) (“As the ADA lists specific

remedies and physical injury is not among them, and we will not

read into the ADA a remedy that Congress was at pains not to

mention.”). The Court holds that there is no general right of

action for a member of the public not a party to a due process

adjudication to sue under the IDEA under the public disclosure

obligation set forth in 20 U.S.C. § 1415(h)(4) and must dismiss

that claim.2

B. Statement of Claim Under § 1983

The Court now turns to Plaintiff’s other claim that could

provide a basis for this Court’s exercise of subject matter

jurisdiction, namely its claim under 42 U.S.C. § 1983. That

2 Separately, the Court notes that courts have been careful to

scrutinize claims by organizations under the IDEA on the basis

that they represent the interests of parents and children who

have undergone due process hearings. Blunt v. Lower Merion Sch.

Dist., 767 F.3d 247, 288 (3d Cir. 2014) (hewing close to the

statutory intent in the IDEA that the right to initiate a civil

action was meant to benefit parents and students); Parent/Pro.

Advoc. League v. City of Springfield, 934 F.3d 13, 34 (1st Cir.

2019) (discussing the need for individuals bringing civil

actions under the IDEA to have exhausted administrative remedies

under the rationale that organizations should not be able to

circumvent that requirement). This situation, where a third-

party organization is requesting records of hearings in which it

was not involved, as laudatory as a matter of public policy and

government transparency that effort may be, is even further

afield from the text of the statute.

claim must be dismissed because, as set forth above, Plaintiff

has not identified a federal right it has standing to bring.

Defendants argue that the § 1983 claim is barred by the

Eleventh Amendment. That claim is made only against the

Commissioner. (ECF 1 at 16-17). The relief requested is a

declaration that NJDOE violated the IDEA and related regulations

by its breach of the provision requiring public access to IDEA

adjudication records, compelling the Commissioner to correct

those practices, and awarding reasonable attorneys fees and

costs. (Id. at 17). Defendants argue that (1) NJDOE is a New

Jersey State executive branch agency entitled to Eleventh

Amendment Immunity and (2) none of the Defendants has waived

their right to Eleventh Amendment Immunity. (ECF 18 at 34).

Under the landmark decision in Ex parte Young, a federal

court, consistent with the Eleventh Amendment, “may enjoin state

officials to conform their future conduct to the requirements of

federal law, even though such an injunction may have an

ancillary effect on the state . . . .” Quern v. Jordan, 440

U.S. 332, 337 (1979). While the Eleventh Amendment generally

divests federal courts of subject matter jurisdiction over suits

brought by private parties against a state, three exceptions to

the general rule apply. First, suits against state officials

seeking prospective equitable relief for ongoing violations of

federal law are not barred by the Eleventh Amendment under the

Ex parte Young doctrine. Pa. Fed’n of Sportsmen’s Clubs, Inc.

v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (citing MCI Telecomm.

Corp. v. Bell Atl. Pa., 271 F.3d 491, 502 (3d Cir. 2001) and Ex

parte Young, 209 U.S. 123, 159–60 (1908)). Second, a state may

be sued directly if Congress has abrogated the state’s immunity

from suit through an unequivocal expression of its intent to do

so and pursuant to a valid exercise of its powers. See Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996). Finally,

individuals may sue a state that has properly waived its

sovereign immunity and consented to suit. Id.

“In determining whether the Ex parte Young doctrine avoids

an Eleventh Amendment bar, the Supreme Court has made it quite

clear that ‘a court need only conduct a “straightforward inquiry

into whether [the] complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as

prospective.”’” Hess, 297 F.3d at 324 (alteration in original)

(quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.

635, 645 (2002)).

Defendants are certainly correct that to the extent that

Plaintiff intends to name NJDOE as a defendant for the purposes

of the § 1983 claim, NJDOE is entitled to Eleventh Amendment

immunity. C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d

Cir. 2000) (“The Department of Education is a state agency and

as such is immune from suit in a federal court without regard to

the nature of the relief sought.”). Plaintiff also makes clear

in its opposition brief that it is only suing the Commissioner

under the § 1983 claim. (ECF 25 at 28-29). Because Plaintiff

is seeking prospective injunctive relief against the

Commissioner, the claim is not barred by the Eleventh Amendment.

Pa. Fed’n of Sportsmen’s Clubs, Inc., 297 F.3d at 323.

However, even if the claim is not barred by the Eleventh

Amendment, to state a claim for relief under § 1983, a plaintiff

must still allege, first, the violation of a right secured by

the Constitution or laws of the United States and, second, that

the alleged deprivation was committed or caused by a person

acting under color of state law. West v. Atkins, 487 U.S. 42,

48 (1988); Malleus, 641 F.3d at 563.

Plaintiff’s § 1983 claim fails on the first prong because

it has not demonstrated the violation of a federal right. As

the Supreme Court has explained, “In order to seek redress

through § 1983 . . . a plaintiff must assert the violation of

a federal right, not merely a violation of federal law.”

Blessing v. Freestone, 520 U.S. 329, 340 (1997), holding

modified by Harz v. Borough of Spring Lake, 191 A.3d 547 (N.J.

2018). To be deemed a right, there are three factors that must

be assessed. Id. “First, Congress must have intended that the

provision in question benefit the plaintiff. Second, the

plaintiff must demonstrate that the right assertedly protected

by the statute is not so ‘vague and amorphous’ that its

enforcement would strain judicial competence. Third, the

statute must unambiguously impose a binding obligation on the

States.” Id. at 340-41 (citations omitted).

Plaintiff’s claim fails here for the same reasons that its

claim under the IDEA fails: there is no federal right that

grants the public a general cause of action to sue when

materials related to due process proceedings are not released

under 20 U.S.C. § 1415(h) to someone who is not a party to the

administrative process.3 Plaintiff cites to 34 C.F.R.

300.513(d)(2), the regulation corresponding to § 1415(h), as the

basis for its § 1983 claim. (ECF 1 at 16). That provision

states, “[t]he public agency, after deleting any personally

identifiable information, must . . . [t]ransmit the findings and

decisions referred to in § 300.512(a)(5) to the State advisory

3 The Court takes this opportunity to delineate the key

differences present between this matter and C.P. v. NJDOE, 1:19-

cv-12807-NLH-MJS (D.N.J. 2019) (“C.P. Matter”), another matter

dealing with the IDEA and § 1983 that is pending before this

Court. In the C.P. Matter, the Court explained that it was

allowing the § 1983 to proceed alongside the IDEA claim because

the § 1983 was based on a separate constitutional property right

under the Fourteenth Amendment, not the IDEA in and of itself.

(C.P. Matter, ECF 391 at 49). In so holding, the Court noted

the jurisprudence establishing that there was a constitutional

property right to an education. (Id. at 49-50). Plaintiff’s §

1983 claim in the instant matter is not tethered at all to a

constitutional right, but rather the text of the IDEA itself.

(ECF 1 at 16-17). That is not sufficient to state a claim under

§ 1983.

panel established under § 300.167; and [m]ake those findings and

decisions available to the public.” 34 C.F.R. § 300.513(d).

Just as with Plaintiff’s count under the IDEA, Plaintiff has not

pointed to a provision of federal law that grants them a cause

of action when NJDOE does not make public due process findings

and decisions. Indeed, this is the source of the federal right

to which Plaintiff anchors its § 1983 claim. Plaintiff’s claim

fails at the first step outlined by the Supreme Court in

Blessing in that it has not pointed to a provision of law that

Congress clearly intended to benefit this Plaintiff.4 Blessing,

520 U.S. at 340. As explained above, the provision of the IDEA

that requires findings and decisions of due process proceedings

to be made public was not written to benefit the public at

large, but rather parties to the proceedings.

Plaintiff does not purport to tie its § 1983 claim to any

other federal right or law and thus its § 1983 claim must be

dismissed. Washington v. Hanshaw, 552 F. App'x 169, 172 (3d

Cir. 2014) (“Section 1983 does not confer any substantive

rights. Rather, it ‘merely provides a method for vindicating

4 The Court notes the Third Circuit’s statement that “a §

1983 action is not available to remedy violations of IDEA-

created rights . . . .” A.W. v. Jersey City Pub. Sch., 486 F.3d

791, 802 (3d Cir. 2007). The Court is cognizant of A.W.’s

guidance, but the Court does not base its holding on A.W. as it

has determined that there is no IDEA-created right here.

federal rights elsewhere conferred.’ Thus, ‘[t]he first step in

any such claim is to identify the specific constitutional right

allegedly infringed.’”) (internal citation omitted) (alteration

in original) (quoting Albright v. Oliver, 510 U.S. 266, 271

(1994)).

C. Plaintiff’s Remaining State Law Claims

As the Court will dismiss all of the claims that provide

federal question jurisdiction, there is no diversity between the

parties, and because this case is at an early stage of

litigation, the Court will dismiss the state law claims.

Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995) (“[W]here the claim over which the district court has

original jurisdiction is dismissed before trial, the district

court must decline to decide the pendent state claims unless

considerations of judicial economy, convenience, and fairness to

the parties provide an affirmative justification for doing

so.”); Nabelsi v. Holmdel Twp., No. 20-20702, 2021 WL 5578851,

at *12 (D.N.J. Nov. 30, 2021) (“Because I dismiss all federal

law claims, and there is no diversity between the parties, I

decline to exercise supplemental jurisdiction over the state

claims . . . .”).5

5 The Court also notes that Plaintiff’s claim under the

Declaratory Judgment Act is not a standalone basis for this

Court to exercise subject matter jurisdiction. Temple Univ.

Hosp., Inc. v. Sec'y U.S. Dep't of Health & Hum. Servs., 2 F.4th

CONCLUSION

For the reasons expressed in this Opinion, Defendants’

motion to dismiss (ECF 18) will be granted. Although the Court

is mindful of an obligation to offer amendment in civil rights

cases generally because ofttimes additional facts may round out

a plausible claim, here any amendment would be futile as a

matter of law as no private right of action exists under the

IDEA or the Constitution on the basis articulated by Plaintiff.6

An appropriate Order will be entered.

Date: February 21, 2023 s/ Noel L. Hillman

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

121, 132 (3d Cir. 2021) (“The Declaratory Judgment Act, 28

U.S.C. §§ 2201, 2202, does not independently grant subject-

matter jurisdiction.”).

6 While 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), it is equally true that “leave to amend

ordinarily should be denied . . . when amendment would be

inequitable or futile,” id. “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)).