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April 23, 1984


The opinion of the court was delivered by: Bua, District Judge.


This order concerns plaintiffs' motion for reconsideration by this Court of its decision in Max M. v. Thompson, 566 F. Supp. 1330 (N.D.Ill. 1983), wherein this Court granted defendants' motions to dismiss certain counts of plaintiffs' complaint, either in their entirety or as to certain defendants. For the reasons stated herein, plaintiffs' motion is granted in part and denied in part.


Plaintiffs' original complaint presented claims which, though grounded on several statutes, were basically derived from the Education for All Handicapped Children Act (EAHCA).*fn1 The EAHCA is a funding statute under which states receive federal funds to assist them in providing educational services to the handicapped. Any state educational agency receiving funds under the EAHCA must establish procedures whereby handicapped children and their parents may protect their rights to a "free appropriate public education." 20 U.S.C. § 1415(a).

Plaintiffs are Max M., a child handicapped within the meaning of the EAHCA, and his parents. The parties named as defendants in the original complaint were designated as the "State Defendants," the "Intermediate Defendants," and the "Local Defendants." The State Defendants included: (1) James R. Thompson, Governor of Illinois; (2) the Illinois State Board of Education (ISBE); (3) Donald Gill, the Illinois Superintendent of Education; and (4) Edward Copeland, the Chairperson of the Illinois State Board of Education. The Local Defendants were: (1) New Trier High School District # 203 (District # 203); (2) the New Trier District # 203 Board of Education; (3) Ronald Bickert, Superintendent of Schools in District # 203, and (4) James Walter, Director of Special Education for District # 203. The final group of defendants, the Intermediate Defendants, included: (1) the North Suburban Special Education District (NSSED); and (2) Stanley Bristol, Superintendent of the NSSED.

The relevant facts taken from the complaint and exhibits thereto have been set forth in this Court's published order of July 1, 1983, Max M., supra, and are briefly recapitulated here. Max M. attended New Trier West, a public high school in North-field, Illinois, from 1977 to 1981. Because of his disorganization, difficulty in writing, and anxiety, his academic performance was poor. During his freshman year, Max was referred to the District No. 203 Department of Special Education for evaluation. Intensive psychotherapy was recommended, but District 203 made no offer to provide the service at that time. The following summer, Max's parents formally requested District 203 to provide the recommended therapy during Max's sophomore year. District 203 developed an "individualized education plan" ("IEP") pursuant to the EAHCA for Max during his sophomore year, but the IEP did not include therapy. Max's condition worsened during his sophomore, junior, and senior years in high school. In the IEPs developed for each academic year, no provision was ever made for District 203 to provide intensive psychotherapy. Max's parents did not participate in the development of any of these IEPs. Ultimately, Max's parents themselves obtained private psychiatric treatment for Max at a cost to them of $8,855.

On May 15, 1981, District 203 notified Mr. and Mrs. M. of its decision to issue Max a high school diploma. Under the EAHCA, a handicapped child in Illinois becomes ineligible for continued benefits upon graduation. On May 21, 1981, Mr. and Mrs. M. requested a due process hearing, alleging violations of Max's right to a free appropriate public education. Subsequently, District 203 issued Max a diploma. On October 13, 1981, a state appointed hearing officer conducted a hearing, and ordered the diploma revoked, with services to continue based upon a new IEP. District 203 appealed the ruling to the Illinois State Board of Education, which, on February 19, 1982, reversed the decision of the hearing officer. Plaintiffs' complaint challenged this ruling on several grounds.*fn2 This Court dismissed all claims against all defendants except for plaintiffs' claim against the Local Defendants under § 1415(e)(2) of the EAHCA for reimbursement of the $8,855 expended by Mr. and Mrs. M. for Max's psychiatric treatment. Max M., 566 F. Supp. at 1340.

In their instant motion, plaintiffs request reconsideration of essentially two of the dismissed claims. These claims sought: (1) compensatory remedial educational services to compensate Max for the deprivation of EAHCA benefits while he was in high school (Related to this claim, plaintiffs request an injunction to rescind Max's high school diploma in order to re-establish his eligibility under the EAHCA); and (2) injunctive relief prohibiting Illinois State Board of Education employees from serving as members of the State review panel, thereby ensuring impartial review. The second claim depends upon revival of the first. The basis for plaintiffs' motion is a case recently decided by the Seventh Circuit, Timms v. Metropolitan School District of Wabash County, Ind., 722 F.2d 1310 (7th Cir. 1983).*fn3 Plaintiffs argue that the Timms opinion, handed down after this Court's original decision in the instant case, states principles which, if followed by this Court, would require a result different than that which the Court previously reached. Plaintiffs urge this Court to reconsider its earlier order in light of the intervening controlling precedent.


Plaintiffs specify no Federal Rule of Civil Procedure under which their motion to reconsider falls.*fn4 Nevertheless, this Court will treat the motion as one arising under Fed.R.Civ.P. 60(b). Rule 60(b) reads in relevant part:

  (b) . . . On motion and upon such terms as are
  just, the court may relieve a party or his legal
  representative from a final judgment, order or
  proceeding for the following reasons: (1)
  mistake, inadvertance, surprise or excusable
  neglect; . . . or (6) any other reason justifying
  relief from the operation of the judgment. The
  motion should be made within a reasonable time,
  and for reasons (1), (2), and (3) not more than
  one year after the judgment order, or proceeding
  was entered or taken. . . .

The Seventh Circuit has stated:

  The extraordinary relief provided by Rule 60(b)
  may be granted only upon a showing of exceptional
  circumstances. Peacock v. Board of School
  Commissioners, 721 F.2d 210, 213 (7th Cir. 1983). A
  motion to vacate a judgment pursuant to Rule 60(b)
  is addressed to the sound discretion of the
  district court . . . Id.; Planet Corp. v. Sullivan,
  702 F.2d 123, 125 (7th Cir. 1983).

McKnight v. U.S. Steel Corp., 726 F.2d 333, 335 (7th Cir. 1984).

A "60(b)(1) motion, filed within the time for appeal, calling the trial court's attention to an intervening controlling appellate decision, is a proper means to allow the trial court to correct a decision that would otherwise be corrected by a timely appeal." Peacock, 721 F.2d at 214, construed in McKnight, 726 F.2d at 336. However, "a change in applicable law after entry of judgment does not by itself justify relief under 60(b)." McKnight, 726 F.2d at 336. To satisfy Rule ...

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