Upon the death of Judge Green, this case was reassigned 1

to the undersigned on June 13, 2007. The interlocutory orders at

issue here, along with the memoranda that accompanied them, were

both authored by Judge Green. The first order, issued on March

30, 2007, dismissed without prejudice Count II of the original

complaint--which sought damages for the loss of educational

opportunities for the years of education prior to L.R.’s 8thgrade school year (the “early years”), pursuant to the

Individuals with Disabilities Education Act--for failure to

exhaust administrative remedies (doc. no. 28). The second order,

issued on May 24, 2007, dismissed without prejudice Plaintiff’s

Rehabilitation Act, Americans with Disabilities Act, and § 1983

claims, to the extent that they concern L.R.’s early years of

education, upon a motion for reconsideration, for failure to

exhaust administrative remedies (doc. no. 39).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

L.R., : CIVIL ACTION

: NO. 05-1283

Plaintiff, :

:

v. :

:

:

MANHEIM TOWNSHIP SCHOOL :

DISTRICT, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. March 26, 2008

Plaintiff, L.R., is a person with disabilities who,

until recently, was a student in the Manheim Township School

District. Plaintiff contends that the School district failed to

provide her with free appropriate public education, in violation

of several federal statutes. Before the Court are Plaintiff's

petition to appeal Judge Green’s interlocutory orders and 1

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 1 of 35
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Defendant’s motion for summary judgment on Plaintiff’s claim

under the Individuals with Disabilities Act (IDEA), Pub. L. No.

91-230, 84 Stat. 175 (1970).

I. BACKGROUND

L.R. has experienced developmental delays in speech and

language from an early age. The educational classifications

associated with these delays are a specific learning disability

and a speech/language impairment. As a person with disabilities,

L.R. is entitled to free appropriate public education under the

Individuals with Disabilities Education Act (“IDEA”). See 20

U.S.C. § 1401(a)(1).

L.R. entered the Manheim Township School District in

1995 for first grade. As required by the IDEA, and to ensure

that L.R. would receive an appropriate education, the School

District created an Individualized Education Program (“IEP”) each

year for L.R., describing her present levels of performance and

creating educational goals and objectives tailored to her

specific educational needs. See 20 U.S.C. § 1414(d).

L.R. remained a student in the School District through

6th grade, when in August 2001, expressing concern over their

daughter’s academic development, L.R.’s parents withdrew her from

the School District and enrolled her in the Maplebrook School, a

private educational institution. Although initially intending to

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 2 of 35
The Appeals Panel reversed the hearing officer’s order 2

requiring L.R. to re-enroll in the School District and to meet

with the School District to discuss and review the IEP. These

rulings are not at issue here.

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challenge L.R.’s 7th-grade IEP as inappropriate, her parents

eventually chose not to do so, and L.R. attended Maplebrook for

her 7th grade year, from 2001-2002.

On November 19, 2002, following a reevaluation of L.R.,

the School District created an IEP for her 8th-grade year, 2002-

2003. Dissatisfied with the 8th-grade IEP, L.R.’s parents

commenced an administrative due process hearing on her behalf

pursuant to the IDEA, arguing that the IEP was not reasonably

calculated to confer a meaningful educational benefit upon L.R. 

The hearing began on December 6, 2002, before hearing officer Max

Wald, Ed. D., and proceeded over four days. At the conclusion of

the hearing, the hearing officer ruled in favor of the School

District, holding that L.R.’s 8th grade IEP was appropriate. 

Subsequently, pursuant to the IDEA, L.R.’s parents

appealed the hearing officer’s decision to the Special Education

Due Process Appeals Panel (“Appeals Panel”), which affirmed the

hearing officer’s decision in relevant part. The Appeals Panel 2

also ordered the School District to conduct a reevaluation of

L.R. and to create a new IEP for the 2003-2004 school year. The

reevaluation report was completed on September 2, 2003.

L.R. now challenges the ruling of the Appeals Panel in

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Although the initial complaint was brought by L.R.’s 3

parents, R.R. and D.R., on her behalf, L.R. reached the age of 18

during the pendency of this case, and the caption of the

complaint was amended to name L.R. as the sole Plaintiff.

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this Court, seeking reimbursement of the tuition for her 8th- 3

grade year at the Maplebrook School. L.R. has also brought

related claims under the Rehabilitation Act, 29 U.S.C. § 794, the

Americans with Disabilities Act, 42 U.S.C. § 12132, and the Civil

Rights Act, 42 U.S.C. § 1983.

II. PETITION FOR INTERLOCUTORY APPEAL

The initial complaint in this case sought not only a

tuition reimbursement for the 2002-2003 school year, but also

monetary damages for “the loss of educational opportunities, loss

of language therapy opportunities and emotional damages [L.R.]

ha[d] suffered” during the years prior to 2002-2003, before L.R.

was in the 8th grade (the “early years”). The initial complaint

sought relief for the early years claims even though L.R.’s

claims in the administrative hearing and appeal were limited

solely to the appropriateness of the 8th-grade IEP, and did not

concern the loss of educational opportunities in the early years.

The School District moved to dismiss the complaint, and

this Court granted the motion in part, dismissing the counts of

the complaint pertaining to the early years of education for

failure to exhaust administrative remedies. L.R. now seeks to

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appeal the Court’s interlocutory orders granting in part the

School District’s motion to dismiss.

A. Legal Standard

A partial grant of a motion to dismiss is not a final

judgment, and thus is generally not appealable except by an

interlocutory appeal under 28 U.S.C. § 1292. See Fed. R. Civ. P.

54(b); e.g., Douris v. Schweiker, 229 F. Supp. 2d 391, 407-08

(E.D. Pa. 2002) (treating an order granting in part a motion to

dismiss as interlocutory); cf. Bushman v. Halm, 798 F.2d 651, 654

n.4 (3d Cir. 1986) (holding that appeal was not final because

summary judgment was only granted as to two of three claims and

thus “there was no final disposition of the entire controversy”).

The decision to certify an interlocutory order for

appeal under § 1292(b) “rests within the sound discretion of the

trial court.” Douris, 229 F. Supp. 2d at 408. “The burden is on

the party seeking certification to demonstrate that ‘exceptional

circumstances justify a departure from the basic policy against

piecemeal litigation and of postponing appellate review until

after the entry of a final judgment.’” Id. (quoting Rottmund v.

Cont’l Assurance Co., 813 F. Supp. 1104, 1112 (E.D. Pa. 1992)).

Under § 1292(b), a district court may certify an

interlocutory order for immediate appeal if it 1) “involves a

controlling question of law,” 2) there is “substantial ground for

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The usage of “Plaintiffs” refers to the initial 4

complaint, which was brought on behalf of L.R. by her parents.

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difference of opinion” as to the question of law, and 3) “an

immediate appeal from the order may materially advance the

ultimate termination of the litigation.” 28 U.S.C. § 1292(b). 

The statutory factors, however, are merely a guide for the

Court’s discretion. See Bachowski v. Usery, 545 F.2d 363, 368

(3d Cir. 1976) (“The certification procedure is not mandatory;

indeed, permission to appeal is wholly within the discretion of

the courts, even if the criteria are present.”); Arista Records,

Inc. v. Flea World, Inc., No. 03-2670, 2006 WL 2882990, at *1

(D.N.J. Oct. 10, 2006) (citing Bachowski).

B. The Interlocutory Orders

1. The March 30, 2007 Memorandum and Order

The Memorandum and Order of March 30, 2007 granted in

part and denied in part Defendant’s motion to dismiss. The Court

held that Count II of the initial complaint, which sought

“monetary damages” under the IDEA for the loss of educational

opportunities for L.R.’s early years of education, was dismissed

without prejudice for failing to exhaust administrative remedies.

[I]n order for this court to determine the merits of

Plaintiffs’ claim the court must first determine [4]

whether and when the District was obligated to

[evaluate] L.R.’s language needs. Were the court to

pursue this line of inquiry, the court would also be

required to determine whether the educational program

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 6 of 35
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offered during L.R.’s early years provided her with a

free appropriate public education under which she could

have made [meaningful] academic progress. Although

Plaintiffs offer expert reports and opinions about

L.R.’s loss of educational opportunity in her early

years the District has not been provided with an

opportunity, at the administrative level, to be heard

on the issue and to attempt to rebut or resolve the

claim. Plaintiffs rely upon W.B. v. Matula, 67 F.3d

484 (3d Cir. 1995), in support of their position.

However, in Matula, the court specifically stated that

“IDEA mandates resort in the first instance to

administrative hearings so as to develop the factual

record and resolve evidentiary disputes concerning for

example evaluation, classification, and placement.” 

Id. at 496. Unlike Matula, in the case sub judice, the

factual record regarding Plaintiffs’ claims with

respect to L.R.’s early years and loss of educational

opportunity has not been developed. Therefore, the

court concludes that Count II of Plaintiffs’ Complaint

will be dismissed, without prejudice, for failure to

exhaust administrative remedies.

Mem., Mar. 30, 2007 (Green, J.), at 8.

2. The May 24, 2007 Memorandum and Order

Clarifying the March 30, 2007 Memorandum upon a motion

for reconsideration, the Memorandum and Order of May 24, 2007

reaffirmed the Court’s prior order and, in addition, dismissed

without prejudice Plaintiff’s claims under the Rehabilitation

Act, ADA, and § 1983 to the extent that they concern Plaintiff's

early years, for failure to exhaust administrative remedies:

As noted in the March 30, 2007 Memorandum, in order for

this court to ascertain whether any violations of IDEA,

the [Rehabilitation] Act, the ADA and § 1983 occurred

with respect to the time period prior to the 2002-2003

school year, the court would necessarily have to

inquire into whether an appropriate educational program

was offered to L.R. and whether the District treated

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L.R. in a discriminatory fashion during those times. 

Administrative proceedings concerning L.R.’s

educational program in her early years could have been

instituted prior to the due process proceedings

instituted for the claim for tuition reimbursement for

the 2002-2003 school year . . . . This court cannot

permit Plaintiffs to litigate--without an

administrative record regarding the appropriateness of

L.R.’s pre-2002 educational programs--issues which

could have and should have been the subject of

litigation prior to 2002. 

Mem. May 24, 2007 (Green, J.), at 2-3.

The “issue of law” addressed by the interlocutory

orders was whether Plaintiff was required to exhaust all

administrative remedies, pursuant to the IDEA, prior to bringing

her claims before this Court. Judge Green decided that the

IDEA’s exhaustion requirement does apply to all of Plaintiff’s

claims, even though some of the claims seek relief not expressly

provided for under the IDEA (monetary damages), and others are

not brought under the IDEA (Rehabilitation Act, APA, and § 1983).

C. Discussion

Although the interlocutory orders in this case

addressed a controlling question of law as to which reasonable

minds may differ, immediate appeal will not materially advance

the termination of the litigation. Therefore, the petition for

interlocutory appeal will be denied.

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 8 of 35
At least one other circuit court has disagreed with the 5

Third Circuit’s broad reading. See In re Cement Antitrust

Litig., 673 F.2d 1020, 1027 (9th Cir. 1982) (“[Katz] essentially

read[s] the ‘controlling question of law’ requirement out of

section 1292(b).”). The Third Circuit has not interpreted the

term “controlling question of law” since Cement Antitrust, and in

the absence of such guidance, the Court is bound to follow Third

Circuit precedent. See, e.g., Bradburn Parent Teacher Store,

Inc. v. 3M, No. 02-7676, 2005 WL 1819969, *2-3 (E.D. Pa. Aug 2,

2005); Russ-Tobias v. Pa. Bd. of Probation & Parole, No. 04-0270,

2006 WL 516771, *32-33 (E.D. Pa. Mar. 2, 2006).

-9-

1. The interlocutory orders involve a 

controlling question of law

The Third Circuit has interpreted the meaning of a

“controlling question of law” broadly:

A controlling question of law must encompass at the

very least every order which, if erroneous, would be

reversible error on final appeal. . . . [The order

need not] terminate the litigation, since with

impleader and transfer of venue orders, two of [§

1292's] sponsors’ examples, the lawsuit could continue

regardless of the interlocutory determination although

an erroneous decision might cause a reversal on appeal

from a final order. . . . [A controlling question must

be] serious to the conduct of the litigation, either

practically or legally. And on the practical level,

saving of time of the district court and of expense to

the litigants was deemed by the sponsors to be a highly

relevant factor.

Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974);

Harter v. GAF Corp., 150 F.R.D. 502, 518 (D.N.J. 1993).5

Here, the interlocutory orders dismissed certain of

Plaintiff’s claims for failure to exhaust administrative

remedies. If erroneous, the dismissal would cause the litigants

the significant expense and delay of unnecessarily going through

the administrative appeals process before they are able to

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 9 of 35
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litigate the early years claims. Moreover, Plaintiff may be

required to commence a second action to litigate the early years

claims, which may require unnecessarily duplicative proceedings. 

Therefore, the interlocutory orders here address a controlling

question of law under § 1292(b).

2. There is substantial ground for difference 

of opinion as to the issues of law 

addressed in the interlocutory orders

The interlocutory orders addressed whether Plaintiff

was required to exhaust all administrative remedies, pursuant to

the IDEA, prior to bringing her IDEA, Rehabilitation Act, ADA,

and § 1983 claims. The Court held that the IDEA’s exhaustion

requirement applies to all of Plaintiff’s claims.

a. Exhaustion under the IDEA

The IDEA requires states receiving federal funds under

the statute to provide disabled students with “a free appropriate

public education.” 20 U.S.C. § 1412(a)(1)(A). Should a dispute

arise as to a student’s education, the IDEA provides for an

“impartial due process hearing,” where a hearing officer makes a

“determination of whether the child received a free appropriate

public education. Id. § 1415(f)(1)(A), (f)(3)(E)(i). The

decision of the hearing officer may subsequently be appealed to

an administrative appeals panel. Id. § 1415(g). The party

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aggrieved by the decision of the appeals panel “shall have the

right to bring a civil action” in a federal district court. Id.

§ 1415(i)(2)(A). Before any such action may be brought, however,

“the [administrative] procedures under subsections (f) and (g) of

this section shall be exhausted.” Id. § 1415(l).

Exhaustion of the IDEA’s administrative remedies is

required not only for actions brought under the IDEA, but also

for other actions brought “seeking relief that is also available

under [the IDEA].” Id. More specifically:

Nothing in this chapter shall be construed to restrict

or limit the rights, procedures, and remedies available

under the Constitution, the Americans with Disabilities

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

or other Federal laws protecting the rights of children

with disabilities, except that before the filing of a

civil action under such laws seeking relief that is

also available under this subchapter, the procedures

under subsections (f) and (g) of this section shall be

exhausted to the same extent as would be required had

the action been brought under this subchapter.

20 U.S.C. § 1415(l) (emphasis added). Therefore, to the extent

that any claim seeks relief that is “available” under the IDEA,

the IDEA’s administrative remedies must be exhausted before such

an action is brought.

In this case, the claims dismissed by the Court’s

interlocutory orders sought “monetary damages.” Therefore, if

monetary damages are “available” under the IDEA, there is no room

for disagreement as to the issue adjudicated by the interlocutory

orders. If not, the inquiry must continue.

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 11 of 35
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b. Monetary damages under the IDEA

The IDEA does not expressly provide for monetary

damages. It does, however, state that “[i]n any action brought

under [the IDEA], the court . . . shall grant such relief as the

court determines is appropriate.” 20 U.S.C. 1415(i)(2)(C)(iii). 

“The Third Circuit has yet to decide whether ‘appropriate relief’

under the IDEA includes compensatory damages.” Brandon V. v.

Chichester Sch. Dist., No. 06-4687, 2007 WL 2155722, at *2 (E.D.

Pa. July 25, 2007) (citing Bucks County Dep’t of Mental

Health/Mental Retardation v. Pennsylvania, 379 F.3d 61, 68 n.5

(3d Cir. 2004) (“We have not settled whether damages are

recoverable in an action arising solely under IDEA.”)).

In dicta, however, the Third Circuit has stated: “[W]e

do not preclude the awarding of monetary damages and leave to the

district court in the first instance the task of fashioning

appropriate relief.” W.B. v. Matula, 67 F.3d 484, 495 (3d Cir.

1995) (holding confined to issue of whether § 1983 provides a

private right of action for IDEA and Rehabilitation Act claims). 

Recently, however, the Third Circuit overruled Matula on other

grounds, although it did so without addressing Matula’s dictum

concerning monetary damages under the IDEA. See A.W. v. Jersey

City Pub. Schs., 486 F.3d 791, 799 (3d Cir. 2007) (holding that

action under § 1983 could not be brought to remedy alleged IDEA

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 12 of 35
Outside the Third Circuit, however, a consensus is 6

emerging that monetary damages are not available under the IDEA. 

See, e.g., Charlie F. v. Bd. of Educ., 98 F.3d 989, 991 (7th Cir.

1996) (“[T]he structure of the statute--with its elaborate

provision for educational services and payments to those who

deliver them--is inconsistent with monetary awards to children

and parents. . . . [W]e conclude that damages are not ‘relief

that is available under’ the IDEA.”); accord Sellers v. Sch. Bd.,

141 F.3d 524, 527 (4th Cir. 1998); Polera v. Bd. of Educ., 288

F.3d 478, 485-86 (2d Cir. 2002); Witte v. Clark County Sch.

Dist., 197 F.3d 1271, 1275 (9th Cir. 1999); Heidemann v. Rother,

84 F.3d 1021, 1033 (8th Cir. 1996); Crocker v. Tenn. Secondary

Sch. Athl. Ass’n, 980 F.2d 382, 386-87 (6th Cir. 1992). But see

Salley v. St. Tammany Parish Sch. Bd., 57 F.3d 458, 466 (5th Cir.

1995) (affirming nominal damages award for IDEA violation without

discussing availability of monetary damages under the IDEA). 

Moreover, recent decisions by courts in this district have joined

the consensus. See, e.g., Brandon V, 2007 WL 2155722, at *3

(“The Court agrees with the overwhelming weight of authority that

compensatory damages are generally inconsistent with the purpose

and statutory scheme of the IDEA, and until the Third Circuit

holds otherwise, will not recognize damages as an available form

of relief in IDEA actions.”); Chambers v. Sch. Dist. of Phila.

Bd. of Educ., No. 05-2535, 2007 WL 4225584, at *10 (E.D. Pa. Nov.

29, 2007) (same). In light of this emerging consensus, the

analysis will also address whether there is substantial ground

for difference of opinion as to the requirement that IDEA’s

administrative remedies must be exhausted if only monetary

damages are sought, assuming that monetary damages are not

“available” under the IDEA.

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violations). In short, Matula and A.W. provide guidance that is

cloudy at best.

In light of the uncertainty remaining in the wake of

Matula and A.W., it cannot be said without considerable doubt

whether monetary damages are available under the IDEA. 

Therefore, even before reaching the issue of exhaustion, there

appears to be “substantial ground for difference of opinion” as

to the question of law adjudicated by the interlocutory orders.6

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c. Applicability of exhaustion requirements 

to claims for monetary damages

If monetary damages are “available” under the IDEA,

then exhaustion is required, and the analysis is at an end

because no disagreement exists as to the issue adjudicated by the

interlocutory orders. See 20 U.S.C. § 1415(l) (requiring

exhaustion for any action “seeking relief that is also available

under [the IDEA]”). Assuming that monetary damages are not

“available” under the IDEA, however, the question remains of

whether the IDEA’s exhaustion requirements apply to claims

seeking only monetary damages.

The Third Circuit addressed this issue in Matula, at

least in dicta, by stating that “by its plain terms § 1415(f)

does not require exhaustion where the relief sought is

unavailable in an administrative proceeding” under the IDEA, such

as monetary damages. 67 F.3d 484, 486 (3d Cir. 1995). In

addition to its plain-meaning rationale, however, the Third

Circuit provided a “second rationale” for its conclusion:

IDEA mandates resort in the first instance to

administrative hearings so as to develop the factual

record and resolve evidentiary disputes . . . . The

factual record has been developed and an action seeking

compensation for the alleged IDEA violations is now

ripe for judicial resolution.

Id. (concluding that “further recourse to administrative

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 14 of 35
As discussed above, Matula has been overruled on other 7

grounds. See A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 799

(3d Cir. 2007). The continuing validity of the Matula dictum is

in question.

Similar disagreement is also reflected outside the 8

Third Circuit. Compare Witte v. Clark County Sch. Dist., 197

F.3d 1271, 1275 (9th Cir. 1999) (holding that “under the IDEA,

monetary damages are not available, so exhaustion is not

required”), and Padilla, 223 F.3d 1268, 1275-76 (10th cir. 2000)

(stating same in dicta), with Polera v. Bd. of Educ., 288 F.3d

478, 481 (2d Cir. 2002) (requiring exhaustion because

“disabled-student plaintiffs . . . should not be permitted to

‘sit on’ live claims and spurn the administrative process that

could provide for the educational services they seek, then later

sue for damages”), and Charlie F. v. Bd. of Educ., 98 F.3d 989,

991-92 (7th Cir. 1996) (“The nature of the claim and the

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proceedings would be futile”).7

The district courts have struggled to determine which

rationale of Matula is controlling. Compare Colon ex rel.

Disen-Colon v. Colonial Intermediate Unit 20, 443 F. Supp. 2d

659, 668 (M.D. Pa. 2006) (“The Third Circuit Court of Appeals,

has held . . . that exhaustion is not necessary where the

plaintiffs seek compensatory damages.”), with Brandon V., 2007 WL

2155722, at *5 (following the courts that “narrowly read Matula

as not excusing exhaustion if the factual record is

underdeveloped, and there are outstanding issues that could be

addressed in an administrative proceeding regardless of the type

of relief sought by the plaintiff . . . [i]n the absence of more

precise guidance from the Third Circuit” (emphasis in original)). 

See generally Brandon V., 2007 WL 2155722, at *4-5 (comparing

cases following each rationale).8

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 15 of 35
governing law determine the relief no matter what the plaintiff

demands. . . . By making an unreasonable or unattainable demand

parents cannot opt out of the IDEA.”).

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Here, because the administrative hearings were limited

to L.R.’s 8th-grade school year, the record has not been clearly

developed as to her early years of education. Thus, if the Court

were to follow Colon, exhaustion would be excused, but if it were

to follow Brandon V., exhaustion would be required. Accordingly,

because the Third Circuit has not since clarified Matula’s

holding, “substantial ground for difference of opinion” remains

as to the question decided by the interlocutory orders.

3. Immediate appeal from the interlocutory 

orders will not materially advance the 

ultimate termination of the litigation

Although a controlling and controverted question of law

is at issue, immediate appeal is not appropriate here, as it will

not materially advance this litigation. An interlocutory appeal

materially advances litigation if it “(1) eliminate[s] the need

for trial, (2) eliminate[s] complex issues so as to simplify the

trial, or (3) eliminate[s] issues to make discovery easier and

less costly.” Orson, Inc. v. Miramax Film Corp., 867 F. Supp.

319, 322 (E.D. Pa. 1994).

Courts in overwhelming numbers have denied petitions

for interlocutory appeals when a successful appeal would not

narrow or dispose of issues in the case and would delay an

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imminent trial. See, e.g., Weaver v. Mobile Diagnostech, Inc.,

No. 02-1719, 2007 WL 2463411, at *2 n.1 (W.D. Pa. Aug. 28, 2007)

(noting that “where discovery is complete and the case is ready

for trial, an interlocutory appeal can hardly advance the

ultimate termination of the litigation” (quotation omitted));

Jackson v. Rohm & Haas Co., No. 05-4988, 2007 WL 2916396, at *1

(E.D. Pa. Oct. 5, 2007) (“[I]t would appear that this case will

go to discovery irrespective of whether the RICO claims are

dismissed. . . . Therefore, I conclude that allowing for an

interlocutory appeal would further delay, not advance, the

termination of this litigation.”). 

Here, a successful interlocutory appeal by Plaintiff

would result in neither the termination nor the narrowing of this

litigation. To the contrary, if Plaintiff were excused from

exhausting administrative remedies, the resolution of this

litigation would only be further delayed. The parties have

engaged in extensive discovery and a motion for partial summary

judgment, discussed below, is before the Court. Should Plaintiff

be excused from exhaustion, the Court would be required to

further extend discovery as to the claims pertaining to L.R.’s

early years of education and further delay and potentially expand

the scope of trial.

Plaintiff’s petition does not convince the Court that

this case is one of the “rare case[s] where an immediate appeal

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 17 of 35
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would avoid expensive and protracted litigation” so as to justify

deviation from “the strong policy against piecemeal appeals.” 

Orson, 867 F. Supp. 319. Accordingly, Plaintiff’s petition for

interlocutory appeal (doc. no. 40) will be denied.

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant moves for summary judgment as to Plaintiff’s

claim under the IDEA that her 8th-grade IEP was not reasonably

calculated to provide a meaningful educational benefit and thus

deprived her of free appropriate public education.

A. Legal Standard

1. Summary judgment

A court must grant summary judgment when “the

pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A fact is “material” if

its existence or non-existence would affect the outcome of the

suit under governing law. Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). An issue of fact is “genuine” when there

is sufficient evidence from which a reasonable jury could find in

favor of the non-moving party regarding the existence of that

fact. Id. at 248-49. “In considering the evidence, the court

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 18 of 35
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should draw all reasonable inferences against the moving party.” 

El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007).

2. Review of agency decisions under the IDEA

Under the IDEA, “[a] free appropriate public education

is available to all children with disabilities residing in the

State between the ages of 3 and 21.” 20 U.S.C. § 1412(a)(1)(A). 

To ensure the appropriateness of the education provided, “[a]n

individualized education program [IEP] . . . must be developed,

reviewed and revised for each child with a disability.” Id. §

1412(a)(4). Plaintiff challenges the appropriateness of her 8thgrade IEP. As required by statute, 20 U.S.C. §§ 1415(f)-(g),

(l), Plaintiff instituted a due process hearing before an

administrative hearing officer, who denied her claim, and

subsequently brought an appeal before the Appeals Panel, which

affirmed the hearing officer’s decision.

Having exhausted her administrative remedies, Plaintiff

brings this suit to challenge the decision of the Appeals Panel,

pursuant to 20 U.S.C. § 1415(i). In considering Plaintiff’s

claim, the Court: “(i) shall receive the records of the

administrative proceedings; (ii) shall hear additional evidence

at the request of a party; and (iii) basing its decision on the

preponderance of the evidence, shall grant such relief as the

court determines is appropriate.” 20 U.S.C. § 1415(i)(2).

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 19 of 35
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The Court “applies a modified version of de novo review

and is required to give due weight to the factual findings of the

[hearing officer].” L.E. v. Ramsey Bd. of Educ., 435 F.3d 384,

389 (3d Cir. 2006). Specifically, “due weight” requires that

[f]actual findings from the administrative proceedings

are to be considered prima facie correct. If a

reviewing court fails to adhere to them, it is obliged

to explain why. The court is not, however, to

substitute its own notions of sound educational policy

for those of local school authorities.

S.H. v. State-Operated Sch. Dist., 336 F.3d 260, 270 (3d Cir.

2003) (alteration and quotation omitted). The Court “must accept

the state agency’s credibility determinations unless the

nontestimonial, extrinsic evidence in the record would justify a

contrary conclusion.” Ramsey, 435 F.3d at 389 n.4 (emphasis and

quotation omitted). Where the Court receives new evidence,

however, “it is free to accept or reject the agency findings

depending on whether those findings are supported by the new,

expanded record and whether they are consistent with the

requirements of the Act.” S.H., 336 F.3d at 270.

3. Appropriateness of the IEP under the IDEA

To be “appropriate,” the IEP “must be reasonably

calculated to enable the child to receive meaningful educational

benefits in light of the student’s intellectual potential.” 

Shore Regional High Sch. Bd. of Educ. v. P.S. ex rel. P.S., 381

F.3d 194, 198 (3d Cir. 2004). The relevant inquiries are:

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 20 of 35
“This rule applies to cases pending when Schaffer was 9

decided,” such as this case. Antoine M. v. Chester Upland Sch.

Dist., 420 F. Supp. 2d 396, 401 (E.D. Pa. 2006).

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“First, has the State complied with the procedures set forth in

the Act? And second, is the [IEP] . . . reasonably calculated to

enable the child to receive educational benefits?” Bd. of Educ.

v. Rowley, 458 U.S. 176, 206-07 (1982). The burden of proof when

“‘challenging an IEP is properly placed upon the party seeking

relief.’” Ramsey, 435 F.3d at 391 (quoting Schaffer v. Weast,

546 U.S. 49, 62 (2005)).9

B. Discussion

In order to determine the appropriateness of L.R.’s

8th-grade IEP with the IDEA, the Court must inquire into both

procedural and substantive compliance.

1. Procedural compliance

Plaintiff alleges that the School District did not

comply with the procedural requirements of IDEA in two respects:

1) failing to require Plaintiff’s regular education teacher to be

on the IEP Team, and 2) failing to make a comprehensive language

evaluation of Plaintiff before creating the IEP.

a. Regular education teacher

The IDEA requires that “[a] regular education teacher

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of the child, as a member of the IEP Team, shall . . .

participate in the review and revision of the IEP of the child.” 

20 U.S.C. § 1414(d)(4)(B). The parties agree that although a

regular education teacher was present at the review of

Plaintiff’s IEP, that teacher was not “a regular education

teacher of [L.R.].” Answer ¶ 49; Am. Compl. ¶ 49. Instead,

allegedly because L.R. had not been a student in the School

District for over one year at the time of her 2002 reevaluation,

a regular education teacher who had never actually taught L.R.

was on the IEP Team. There is no question, therefore, that the

School District violated § 1414(d)(4)(B) of the IDEA.

In so finding, this Court disagrees with the hearing

officer and the Appeals Panel. The hearing officer and Appeals

Panel found no violation of the IDEA because “a regular education

teacher” was present at the IEP meeting. Deft.’s Mot. for

Partial Summ. J., Ex. B [hereinafter “Due Process Hrg.

Decision”], at 17; id. Ex. C [hereinafter [“Appeals Panel

Decision”], at 2. The plain terms of the IDEA, however, require

more than merely “a regular education teacher”; they require a

“regular education teacher of the child,” namely, L.R. 20 U.S.C.

§ 1414(d)(4)(B) (emphasis added). There is no dispute that the

regular education teacher who attended L.R.’s IEP meeting had

never taught L.R. Therefore, the composition of the IEP Team

violated the IDEA. Accord R.B. ex rel. F.B. v. Napa Valley

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Unified Sch. Dist., 496 F.3d 932, 940 (9th Cir. 2007)

(interpreting the language “of the child” to require the IEP Team

to include a special education teacher who actually taught the

child in question).

This does not end the inquiry, however, as “[a] child

is denied a [free appropriate public education] only when [a]

procedural violation [of the IDEA] results in the loss of

educational opportunity or seriously infringes the parents'

opportunity to participate in the IEP formation process.” Id. at

938 (quotation omitted); Deal v. Hamilton County Bd. of Educ.,

392 F.3d 840, 860 (6th Cir. 2004) (“The question is whether these

violations caused substantive harm to either [the child] or his

parents.”). When no such substantive harm occurs, an “IDEA

procedural error may be held harmless.” R.B., 496 F.3d at 938;

see e.g., Robert B. ex rel Bruce B. v. W. Chester Area Sch.

Dist., 04-2069, 2005 WL 2396968, at *9 (E.D. Pa. Sept. 27, 2005)

(denying relief because although “no regular education teacher

was present at the IEP meeting,” “the Court finds no evidence in

the record that Robert has been denied any necessary service . .

. as a result of the flaw”).

Here, Plaintiff contends that the regular education

teacher who actually taught her would have raised the issue of

“the dynamics of social interactions between non-disabled peers

in [her] class” and argued that L.R. was “a peer with severe and

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In fact, Plaintiff “acknowledge[s] that the absence of 10

the appropriate regular education teacher is not the most

critical deficit in the IEP.” Plf.’s Resp. to Deft.’s Mot. for

Partial Summ. J. 12.

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global language-based disabilities.” Plf.’s Resp. to Deft.’s

Mot. for Partial Summ. J. 13. Plaintiff does not, however,

accompany this rather general assertion with any citations to

record evidence or concrete illustrations of this alleged

prejudice. The Court is left to speculate as to what impact 10

the regular education teacher’s participation would have had on

the outcome of the IEP meeting.

The value of the regular education teacher’s

contribution is especially uncertain because L.R. had not been

enrolled in the School District since August 2001, over a year

before the November 2002 IEP meeting. In fact, Plaintiff has not

been able to name a regular education teacher who actually taught

her, let alone demonstrate that such teacher was still employed

in the School District and available in November 2002.

Accordingly, without any showing of prejudice to

Plaintiff caused by the absence of her regular education teacher

from the IEP Team, the Court finds that the teacher’s absence did

not result in a denial of free appropriate public education.

b. Comprehensive language evaluation

IDEA’s implementing regulations require that “[i]n

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 24 of 35
Plaintiff cites the prior version of the regulation, 11

which has identical language. See 34 C.F.R. § 300.532(g)

(amended 2006).

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evaluating each child with a disability . . . the evaluation

[must be] sufficiently comprehensive to identify all of the

child's special education and related services needs, whether or

not commonly linked to the disability category in which the child

has been classified.” 34 C.F.R. § 300.304(c)(6). Citing this

regulation, Plaintiff asserts that the IEP was procedurally 11

defective because it was not based on a “comprehensive language

evaluation,” but rather “exclusively” on the School District’s

own “intuitive sense.” Am. Compl. ¶ 47.

Although the hearing officer’s opinion does not

specifically discuss this argument, the Special Appeals Panel

made the following finding: “[T]he argument that the District

failed to conduct its own language testing is conceded by the

District and is not prejudicial in light of the extensive

information available from other sources.” Appeals Panel

Decision at 4.

Plaintiff must now adduce evidence in order to defeat

the presumption that the administrative finding is correct. See

S.H., 336 F.3d at 270 (noting the Court’s obligation to give “due

weight” to the administrative factual findings and its duty not

“to substitute its own notions of sound educational policy for

those of local authorities”). Plaintiff does not do so here.

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Plaintiff cites to the depositions of psychologist

Loura Keepers and speech pathologist and audiologist Lisa

Strickland, discussing the evaluations of L.R. that they

performed in September 2003, nearly a year after her 8th-grade

IEP was created. See Plf.’s Counterstatement of Undisputed

Facts, Exs. D-E. Plaintiff argues that the evaluations by

Strickland and Keepers demonstrate that L.R.’s language-related

disability was more severe than the School District thought at

the time the 8th-grade IEP was created, and that the detection of

a more severe impairment in 2003 is evidence that the School

District’s inquiry in 2002, which failed to detect such a severe

impairment, was therefore insufficient.

Plaintiff is incorrect. “[T]he measure and adequacy of

an IEP can only be determined as of the time it is offered to the

student, and not at some later date.” Fuhrmann ex. rel. Fuhrmann

v. E. Hanover Bd. of Educ., 993 F.2d 1031, 1040 (3d Cir. 1993)

(“Neither the statute nor reason countenance ‘Monday morning

Quarterbacking’ in evaluating the appropriateness of a child’s

placement.”); Carlisle Area Sch. v. Scott P., 62 F.3d 520, 534

(3d Cir. 1995) (citing Furhmann). Therefore, a determination--

made nearly a year after the creation of the 8th-grade IEP--that

L.R. had a more serious language impairment than was previously

thought does not mean that the evaluation on which the 8th-grade

IEP was based was insufficiently comprehensive. The degree of

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 26 of 35
A “comprehensive language evaluation” is not 12

specifically required by the IDEA, its regulations, or the case

law interpreting the IDEA. Plaintiff cites Rose v. Chester

County Intermediate Unit, No. 95-239, 1996 WL 238699 (E.D. Pa.

May 7, 1996). In Rose, the Court overturned an administrative

determination because the hearing officer and Appeals Panel used

an improper and oxymoronic standard, finding that the IEP was

“appropriate but inadequate.” Id. at *6. No such improper

finding was made by the hearing officer or Appeals Panel here. 

Moreover, the Court in Rose did not base its holding on any postIEP evaluations. To the contrary, it specifically held that

“[w]e must . . . view the IEP from the perspective of a snapshot

taken at the time it was offered.” Id. at *6.

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L.R.’s impairment in September 2003 does not bear on the degree

of her impairment as measured in November 2002, unless Plaintiff

can show that the degree of impairment was substantially

unchanged between the two evaluations. Plaintiff does not do so

here. Moreover, Plaintiff cites no case where a court overturns

an administrative determination for failure to make a

“comprehensive language evaluation” based on the results of a

post-IEP evaluation, and the Court finds none.12

Other than the post-IEP evaluations, Plaintiff points

to no evidence showing that the School District’s 2002 evaluation

was insufficiently “comprehensive.” In fact, far from basing the

IEP on “intuitive sense” alone, the School District and L.R.’s

parents subjected her to a battery of evaluations upon which the

8th-grade IEP was based. These evaluations included, inter alia,

a report by Dr. Lisi Levisohn, a neuropsychologist selected by

L.R.’s parents; progress reports by her teachers at the

Maplebrook Academy; results from Stanford Achievement Testing and

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Woodcock-Johnson III Testing; and evaluations and reports by Dr.

Thomas Kelly, who holds a doctorate in special education,

instructional technology, and applied behavior analysis from

Columbia University, and who was selected by L.R.’s parents. See

Deft.’s Statement of Undisputed Facts ¶¶ 19-31; Plf.’s

Counterstatement of Undisputed Facts ¶¶ 19-31. It is clear,

therefore, that L.R.’s 8th-grade IEP was not based on “intuitive

sense,” but rather on a battery of multidisciplinary evaluations.

Finally, Plaintiff quibbles with the methodology of the

evaluations underlying the 8th-grade IEP. For example, although

Dr. Kelly conducted significant language-based evaluations,

Plaintiff contends that these evaluations were insufficient

because Kelly is not a language therapist and because “subtests

of Woodcock Johnson which ‘look at’ language issues” do not

constitute an ‘intensive language evaluation.’” Plf.’s Resp. to

Deft.’s Mot. for Partial Summ. J. 10. 

The Court is not properly equipped to follow Plaintiff

into the thicket of methodological debate:

[C]ourts lack the specialized knowledge and experience

necessary to resolve persistent and difficult questions

of educational policy. We think that Congress shared

that view when it passed the [IDEA]. As already

demonstrated, Congress' intention was not that the Act

displace the primacy of States in the field of

education, but that States receive funds to assist them

in extending their educational systems to the

handicapped. Therefore, once a court determines that

the requirements of the Act have been met, questions of

methodology are for resolution by the States.

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Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982). Therefore,

the Court will not independently review the methodology of the

testing underlying L.R.’s 8th-grade IEP. Suffice it to say that,

in this case, the IEP was based on far more than the School

District’s “intuitive sense,” and the evaluations conducted were

sufficiently “comprehensive” to ensure that L.R.’s special

education needs were identified.

2. Substantive compliance

Plaintiff next contends that her 8th-grade IEP was

substantively inappropriate for two reasons: 1) it contained a

double-block schedule employing a teacher’s aide that was not

designed to and did not meet her needs, and 2) it did not provide

sufficient language therapy to meet her needs.

a. Double-block schedule and use of an aide

L.R.’s 8th-grade IEP provided for a double-block

schedule for language arts and mathematics classes:

Written expression/Language arts (English) and Math

classes will be scheduled as “double periods.” 

Individual aide support will be provided to [L.R.]

during the second half of the period so that she can

have extended time to practice emerging skills. The

aide will have attended the first period of these

“blocked” classes so that the aide is aware of the

teacher’s specific instructional content in the

preceding period. The aide will be responsible for

assisting [L.R.] by providing extended practice and

drill and will be available if/when [L.R.] needs

clarifications, instructions, etc.

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Deft.’s Mot. for Partial Summ. J., Ex. E, at 9; Due Process Hrg.

Decision at 15. The double-block schedule was implemented at the

request of L.R.’s parents, and based on the evaluation and

recommendation of Dr. Kelly, “who felt such time was needed by

the student in order for her to ‘overlearn’ the content of the

lesson in an environment free of the need to rush through the

lesson’s practice and reinforcement segment.” Due Process Hrg.

Decision at 16.

Although L.R.’s parents requested the double-block

schedule in the first instance, they disagreed with the manner in

which the School District implemented the schedule, by assigning

a teacher’s aide--rather than a teacher--to instruct L.R. during

the second block of the schedule while the teacher taught another

class in the same room. L.R.’s parents believed that “[a]n aide

would not have the authority to develop new strategies and

approaches to help [L.R.] grasp [concepts],” and that “[s]imple

repetition of a concept” would be counterproductive because L.R.

“basically shut down if she did not grasp a concept and could not

move on until she had.” Plf.’s Resp. to Deft.’s Mot. for Partial

Summ. J. 3.

After “[c]onsiderable attention was focused during the

hearing on this portion of the IEP and its perceived

inappropriateness for [L.R.],” the hearing officer made the

following finding:

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The IEP was clear as to the role of the aide. The aide

was present to support and clarify. . . . The

testimony from the Director of Pupil Services was

reassuring to the hearing officer in that it was made

clear that [L.R.]’s teacher would be present in the

classroom at all times though she would be teaching

another class that would also be present in the

classroom, a factor which in the eyes of the hearing

officer would not be detrimental to [L.R.] since she

would be in the company of a 1:1 aide. It must also be

noted that because of the importance attached to

[L.R.]’s perceived need for the double language arts

and mathematics periods, the schedule of the entire

middle school was modified in order to bring about this

arrangement for the Student. This demonstrated to the

hearing officer the desire of the District to make

whatever accommodation was necessary in order to

provide the Student with a program and placement in

which she could access the general curriculum and make

more than de minimus [sic] academic progress.

Due Process Hrg. Decision at 16. The hearing officer held that

the double-block schedule did not deny L.R. an appropriate

education, and the Appeals Panel affirmed:

The parents assert that [L.R.]’s instruction was being

provided by an aide and not the teacher. There is no

evidence within the record to conclude that an aide

will be performing the duties of the teacher. . . . 

The inclusion of the aide does not deny [L.R.] an

appropriate education.

Appeals Panel Decision at 3.

Seeking to controvert the administrative findings,

Plaintiff again cites to L.R.’s September 2003 post-IEP

evaluation. Plaintiff argues that this September 2003 evaluation

demonstrates the inappropriateness of the 8th-grade IEP because

it purportedly “repudiates” the double-block schedule.

As discussed above, however, the post-IEP evaluation

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 31 of 35
The School District disputes this averment, arguing 13

that the previous IEP was withdrawn as an accommodation to L.R.

and her parents, but was never repudiated as inappropriate. The

record appears to bear the School District out; Plaintiff cites

to page 21 of the 2003 evaluation report as evidence that the

double-block scheduling was “repudiated,” but there is no mention

of the double-block scheduling on or around this page, let alone

any repudiation of it. See Plf.’s Counterstatement of Undisputed

Facts, ¶ 35(f) & Ex. A, at 21.

Acknowledging Fuhrmann’s prohibition of “Monday morning 14

quarterbacking,” Plaintiff seeks to muddy the waters by arguing

that the 2003 evaluation should be considered by the Court

nonetheless because “the District is adamant that they already

knew” the information contained in it at the time that L.R.’s

8th-grade IEP was created in 2002. Plf.’s Resp. to Deft.’s Mot.

for Summ. J. 3. Plaintiff points to an argument by the School

District in its motion that the 2003 evaluation “did not contain

anything significant about how to educate L.R. that was not known

previously to [her family], their private evaluator, and their

public school educators.” Deft.’s Mot. for Partial Summ. J. 14. 

This statement is legal argument, not evidence, and in any event

does not indicate that all of the information in the 2003

evaluation was known to the School District in 2002.

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pointed to by Plaintiff cannot show that L.R.’s 8th-grade IEP was

inappropriate “as of the time it [was] offered.” Fuhrmann, 993

F.2d at 1040. Even assuming that the 2003 evaluation did

repudiate the previous IEP due to L.R.’s lack of progress, “any 13

lack of progress under a particular IEP . . . does not render

that IEP inappropriate” because “appropriateness is judged

prospectively.” Carlisle, 62 F.3d at 521.14

Other than the post-IEP evaluation, Plaintiff cites to

no evidence suggesting that the double-block schedule and use of

an aide was inappropriate. Therefore, this Court will not

disturb the finding of the hearing officer, which was affirmed by

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Plaintiff argues for the first time before this Court 15

that L.R. has a condition known as aphasia, a potentially severe

language disorder caused by damage to certain areas of the brain. 

The hearing officer and Appeals Panel did not discuss aphasia,

but rather stated that L.R. “has been identified as a student

with a history of developmental delays in speech and language and

a specific learning disability.” Appeals Panel Decision at 1;

Due Process Hrg. Decision at 1. In fact, there is no evidence

that L.R. has ever been diagnosed with aphasia. The only

relevant evidence pointed to by Plaintiff is an evaluation from

1995 stating that “Roberta Kornfeld, [L.R.]’s private speech and

language therapist . . . shared an article with the team

regarding childhood aphasia, and wondered aloud if this might not

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the Appeals Panel, that the double-block schedule and use of an

aide did not deprive L.R. of an appropriate education.

b. Language therapy

Similarly, Plaintiff argues that “[v]iewed from the

prism of the September 2003 [evaluation],” the 8th-grade IEP does

not provide adequate language therapy. Plf.’s Resp. to Deft.’s

Mot. for Summ. J. 17. Plaintiff argues that the 2003 evaluation

revealed that L.R. has a severe language and auditory-processing

disability, and that as a result she requires language therapy

above and beyond that provided by her 8th-grade IEP.

This argument, like those above, is squarely foreclosed

by Furhmann. See 993 F.2d at 1040. Even if L.R.’s 2003

evaluation concluded that she had a more severe disability than

previously thought, this fact has no bearing on the

appropriateness of her 2002 8th-grade IEP “as of the time it

[was] offered.” Id.15

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 33 of 35
describe [L.R.]. No conclusions were reached at the meeting

regarding this possibility.” Plf.’s Statement of Undisputed

Facts, Ex. H, at SD 3.3. There is no other suggestion that L.R.

might have aphasia in any other document in the record, which

contains evidence spanning the seven years between Dr. Kornfeld’s

inconclusive ruminations concerning aphasia and the creation of

L.R.’s 8th-grade IEP.

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Evaluating the IEP at the time it was offered, the

hearing officer found its provision for language therapy to be

appropriate: “The November 2002 IEP for 8th grade increased

speech therapy to two 30 minute sessions per week. The IEP when

completed was very responsive to [L.R.]’s needs.” Due Process

Hrg. Decision ¶ 9. The hearing officer further found that the

“District has offered the Parents a well constructed IEP with a

recommended placement that includes part time Learning Support

[and] itinerant Speech/Language Support.” Id. at 15.

Therefore, because Plaintiff points to no evidence

other than the 2003 post-IEP evaluation, the Court will not

disturb the administrative determination that the 8th-grade IEP’s

provision for language therapy was appropriate.

IV. CONCLUSION

Plaintiff’s petition to appeal interlocutory orders

will be denied. Defendant’s motion for partial summary judgment

will be granted. An appropriate order follows.

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 34 of 35
The reply brief was considered by the Court and shall 16

be deemed filed.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

L.R., : CIVIL ACTION

: NO. 05-1283

Plaintiff, :

:

v. :

:

:

MANHEIM TOWNSHIP :

SCHOOL DISTRICT, :

:

Defendant. :

O R D E R

AND NOW, this 26th day of March, 2008, it is hereby

ORDERED that Plaintiff’s petition for permission to appeal an

interlocutory order (doc. no. 40) is DENIED.

IT IS FURTHER ORDERED that Defendant’s motion for

partial summary judgment (doc. no. 44) is GRANTED. Judgment will

be entered for Defendant on Count I of the complaint.

IT IS FURTHER ORDERED that Defendant’s motion for

permission to file a reply brief (doc. no. 52) is GRANTED.

16

IT IS FURTHER ORDERED that Plaintiff’s motion for

extension of time (doc. no. 53) is DENIED as moot.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

Case 2:05-cv-01283-ER Document 55 Filed 03/26/08 Page 35 of 35