Town of Burlington v. Department of Ed. of Com. of Mass.

• Decision Date: 18 June 1981
• Docket Number: Nos. 80-1527,81-1112,s. 80-1527
• Parties: TOWN OF BURLINGTON and the School Committee of the Town of Burlington, Plaintiffs, Appellants, v. The DEPARTMENT OF EDUCATION OF the COMMONWEALTH OF MASSACHUSETTS and John Doe, as He is the Father and Next Friend of John Doe, Jr., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 428

655 F.2d 428

TOWN OF BURLINGTON and the School Committee of the Town of Burlington, Plaintiffs, Appellants, v. The DEPARTMENT OF EDUCATION OF the COMMONWEALTH OF MASSACHUSETTS and John Doe, as He is the Father and Next Friend of John Doe, Jr. Defendants, Appellees.

Nos. 80-1527, 81-1112.

United States Court of Appeals First Circuit.

June 18, 1981.

David Berman and John F. Zamparelli, Medford, Mass., Town Counsel for plaintiffs, appellants.

Michael Broad, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief for appellee, Dept. of Ed. of the Commonwealth of Massachusetts.

Gerald B. Gallagher, Acton, Mass., for defendants, appellees John Doe, etc.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, WYZANSKI, Senior District Judge. ^*

COFFIN, Chief Judge.

The ultimate question to be decided in this case is whether the Town of Burlington, Massachusetts must pay for the special education of John Doe, Jr. The district court held that the Massachusetts Department of Education's decision that the Town must reimburse Doe, Jr.'s father was supported by substantial evidence as a matter of state law. It also denied the Town's motion for stay of the Department's decision and granted Mr. Doe's and the Department's motions that the Department's decision be enforced during the pendency of the action. The Town appeals all three judgments. We vacate the first and third judgments and affirm the second judgment.

I

The parties to this suit agree that John Doe, Jr. has special educational needs justifying some type of publicly financed service. See generally 20 U.S.C. §§ 1401-20 (providing federal aid for education of handicapped); Mass.Gen.Laws Ann. ch. 71B (West Supp.1981) (providing for education of children with special needs). The Town proposed that he attend the special education program at the Pine Glen School, a public school that provides both regular elementary and special educational curricula. Mr. Doe preferred the private Carroll School. As state law provides, Mr. Doe sought review of the Town's decision by the state Department of Education. See id. at §§ 3 & 10; 603 C.M.R. § 401.0 (Code of Massachusetts Regulations). See also 20 U.S.C. § 1415(b)(2) & (c). The Department held hearings on this matter from September to November 1979. At the beginning of his child's fourth grade year in September 1979, Mr. Doe enrolled his son in the Carroll School. In January 1980, the Department ruled that the Carroll School was the appropriate program and ordered the Town to pay for the child's education there. In its decision the Department advised that the Town could "file a petition for review in the Superior Court or the Federal District Court". Cf. Ezratty v. Commonwealth of Puerto Rico, 648 F.2d 770, at 776 (1981) (no express consent by Puerto Rico to suit in federal court).

The Town then sought judicial review of the Department's decision. It filed suit against the Department and Mr. Doe in federal district court on a two count complaint. Jurisdiction for the first court ("the federal count") was founded upon 20 U.S.C. § 1415(e)(2), which provides for judicial review for "(a)ny party aggrieved by the findings and decision made" pursuant to state procedures required of state and local agencies receiving federal assistance by the federal aid-to-the-handicapped scheme. ¹ See id. at § 1415(a), (c) & (e). The second count ("the state count") claimed to be a pendent matter under a Massachusetts law establishing judicial review for "any person... aggrieved by a final decision of any agency...." Mass.Gen.Laws Ann. ch. 30A, § 14 (West 1979). ²

The Town moved on May 26, 1980 for a stay of the Department's order that the Town pay for the Carroll School education. It sought only to avoid payment to the Carroll School and to Mr. Doe at that time; it did not seek and has not sought to have John Doe, Jr. transferred from his ongoing education at the Carroll School. In connection with this motion, the Town requested an evidentiary hearing. After hearing oral argument on July 7, 1980, but without taking evidence, the district court denied the requested stay on July 24, 1980. The Town appealed to us from that decision.

The parties filed cross motions for summary judgment on the state count, which the district court decided in favor of the defendants on November 19, 1980. The district court certified this judgment as final under Fed.R.Civ.Proc. 54(b), and set the federal count for future trial. The Town appealed from the summary judgment decision. We consolidated this appeal with that already pending from the district court's July 24 decision to constitute No. 80-1527.

We heard oral argument in No. 80-1527 on March 4, 1981. Meanwhile, the posture of the case had continued to change. The Department moved for a preliminary injunction on December 11, 1980 to enforce its order requiring the Town to pay tuition and to reimburse the Does. This motion supplemented Mr. Doe's pending motions to similar effect. On December 15, 1980, the Massachusetts Commissioner of Education wrote to the Town threatening to freeze all of its special education assistance unless the Town complied with the Department's order. After a hearing on this matter, a state hearing officer concluded on January 30, 1981 that the Department properly could withhold fiscal year 1981 funds from the Town. On February 9, 1981, the district court held a hearing at which the Town stated that it was now "prepared to keep this child in school until this case can be decided." The Town also made clear that it would also pay for the child's school transportation "from here on in ... without any problem to Mr. Doe." We were informed at oral argument that the Town has made good on these commitments.

The Town persisted, however, in refusing to reimburse Mr. Doe for his past expenses for the 1979-1980 academic year. On February 12, 1981, the district court issued an order requiring the Town, inter alia, to reimburse Mr. Doe in the amount of $8837.97 for past educational expenses. The Town appealed this order, which we docketed as No. 81-1112 and in which we heard oral argument on June 3, 1981. ³

We therefore have before us in No. 80-1527 (1) an appeal from the district court's November 19, 1980 grant of summary judgment for the Department and Mr. Doe on Count II of the Town's complaint, and (2) an appeal from the district court's July 24, 1980 denial of the Town's motion for stay of the Department's order pending final resolution of the case. In No. 81-1112 we are presented with the Town's appeal from the district court's February 12, 1981 order of 1979-1980 reimbursement. We consider these issues in that order.

II

We hold that the district court erred in granting summary judgment for the defendants under state law because we conclude that state law cannot be applied when review under federal law is sought. By its terms 20 U.S.C. § 1415(e)(1) provide that decisions by the state educational agency "shall be final, except that any party" has judicial appeal rights under 20 U.S.C. § 1415(e)(2). That subsection provides for review in state or federal court. It also sets forth the procedure and standards for this review: "In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." Id.

This federal specification for review, when invoked, seems to us designed to occupy the field over an inconsistent state provision. ⁴ Here the arguably applicable state review provision part of the state's general administrative procedure legislation calls for, inter alia, judicial review governed by the substantial evidence standard. Mass.Gen.Laws Ann. ch. 30A, § 14. This standard does conflict with the federal standard; we can imagine many judicial reviews that would uphold an agency decision as based on substantial evidence but that would reach a different result were new evidence to be taken and judged under the more rigorous "preponderance of the evidence" standard.

This conflict could lead to results that should be avoided. For instance, the Department might have ruled in this suit that the Town's proposed plan was faulty but that appropriate relief was something other than what Mr. Doe sought. One aggrieved party might have selected a state forum for review under state law while the other filed in federal court claiming review under the federal standard. If both review provisions legitimately coexisted, the resolution of the controversy could inspire an unseemly race to judgment. Even this would not dependably produce consistency. A decision based simply on substantial evidence would not be res judicata for an issue to be decided by the more probing preponderance of the evidence standard. The converse situation would often be more settled, since a finding under the preponderance standard would generally control the substantial evidence question. But inconsistencies could appear here as well. The federal provision directs that the reviewing court "shall hear additional evidence at the request of a party", while the state provision normally confines its review to the record developed by the agency. See Mass.Gen.Laws Ann. ch. 30A, § 14(6) (West 1979). A preponderance-of-the-evidence holding based on an expanded record could present a different legal issue than that faced on a substantial evidence review of a limited record, thus again presenting the specter of inconsistent federal and state judgments, one which might attempt to affirm and enforce the Department's ruling while the other sought to overturn it.

We therefore vacate the district court's decision concerning state law that does not apply in this case. ⁵ This will leave the scheduled trial on the federal count as the sole mechanism of...