Padilla v. School District No. 1 , 233 F.3d 1268 ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 5 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
SHAYNE PADILLA, by and through
her legal guardians and next friends
MICHELLE PADILLA and
MARIANO PADILLA,
Plaintiff - Appellee,
v. No. 99-1061 & 99-1345
SCHOOL DISTRICT NO. 1 IN THE
CITY AND COUNTY OF DENVER,
COLORADO; DENVER SCHOOL
DISTRICT BOARD OF
EDUCATION; JEAN BOGGS,
individually and in her official
capacity as employee of School
District No. 1 in the City and County
of Denver,
Defendants,
and
PATRICE HALL; CYNTHIA ROSE;
MARIA DIAZ; JEANNIE HAYES,
individually and in their official
capacities as employeees of School
District No. 1 in the City and County
of Denver,
Defendants - Appellants,
-------------------------
LEGAL CENTER FOR PEOPLE
WITH DISABILITIES AND OLDER
PEOPLE;
COLORADO DEVELOPMENTAL
DISABILITIES PLANNING
COUNCIL;
NATIONAL ASSOCIATION OF
PROTECTION AND ADVOCACY
SYSTEMS; CENTER FOR LAW AND
EDUCATION; TASH; THE
ASSOCIATION FOR COMMUNITY
LIVING IN BOULDER COUNTY,
INC.; ARC OF DENVER; ARC OF
ADAMS COUNTY; ARC OF
ARAPAHOE & DOUGLAS
COUNTIES; ARC OF
COLORADO; ARC OF THE UNITED
STATES; NAMI COLORADO;
NATIONAL ALLIANCE FOR THE
MENTALLY ILL; ROCKY
MOUNTAIN CHILDREN'S LAW
CENTER; NATIONAL SCHOOL
BOARDS ASSOCIATION;
COLORADO ASSOCIATION OF
SCHOOL BOARDS,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 98-WY-1262-CB)
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Patrick B. Mooney (Julie C. Tolleson and Elizabeth J. Hyatt with him on the
briefs) of Semple, Miller & Mooney, P.C., Denver, Colorado, for Defendants-
Appellants.
Kathleen Mullen of Law Office of Kathleen Mullen, P.C., Denver, Colorado, for
Plaintiff-Appellee.
Richard F. Hennessey and Kathryn A. Wingard of Pendleton, Friedberg, Wilson &
Hennessey, P.C., filed an amicus curiae brief for Rocky Mountain Children’s Law
Center.
Kathleen B. Boundy, Co-Director, Center for Law and Education, Boston,
Massachusetts, and Michael W. Breeskin, General Counsel, Association for
Community Living in Boulder County, Inc., filed an amicus curiae brief for
Center for Law and Education, Tash, and the Association for Community Living
in Boulder County, Inc.
Kristin A. Kutz and William P. Bethke of Kutz & Bethke, Lakewood, Colorado,
filed an amicus curiae brief for Arc of Denver, Arc of Adams County, Arc of
Arapahoe & Douglas Counties, Arc of Colorado, Arc of the United States, NAMI
Colorado, and National Alliance for the Mentally Ill.
Julie K. Underwood, General Counsel, National School Boards Association,
Alexandria, Virginia; Lauren B. Kingsbery and Julie Murphy Seavy, Legal
Counsel, Colorado Association of School Boards, Denver, Colorado; and Julie J.
Weatherly, School Board Attorney, Weatherly Law Firm, Atlanta, Georgia, filed
an amicus curiae brief for National School Boards Association and Colorado
Association of School Boards.
Chester R. Chapman, Denver, Colorado, filed an amicus curiae brief for The
Legal Center for People with Disabilites and Older People, the Colorado
Developmental Disabilities Planning Council, and National Association of
Protection and Advocacy Systems.
Before BALDOCK, McKAY, and ALARCON *, Circuit Judges.
Honorable Arthur L. Alarcon, Circuit Judge, United States Court of
*
Appeals for the Ninth Circuit, sitting by designation.
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McKAY, Circuit Judge.
Plaintiff, a minor with physical and developmental disabilities,
formerly attended school in Denver School District No. 1. She brought an action
against the school district and the board of education, alleging violations of the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. She also
brought an action against the district, the board, and several individual district
employees, alleging violations of 42 U.S.C. § 1983 based on Defendants’ failure
to provide rights guaranteed by the Individuals with Disabilities Education Act
(IDEA), 20 U.S.C. §§ 1400-1487. Defendants moved to dismiss on various
grounds, including qualified immunity, but the district court denied their motion
except as to one of the individual defendants. This court has jurisdiction over the
remaining individual defendants’ qualified immunity appeal pursuant to Mitchell
v. Forsyth, 472 U.S. 511 (1985), and over the appeal of the district court’s other
determinations pursuant to its certification for immediate appeal under 28 U.S.C.
§ 1292(b). 1
I.
1
Plaintiff’s motions to dismiss this appeal and for attorney fees are denied.
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In 1975, Congress enacted the Education of the Handicapped Act (EHA),
the IDEA’s predecessor. 2 Its primary purpose is “to assure that all children with
disabilities have available to them . . . a free appropriate public education which
emphasizes special education and related services designed to meet their unique
needs [and] to assure that the rights of children with disabilities and their parents
or guardians are protected.” 20 U.S.C. § 1400(d)(1)(A)-(B). 3 To implement these
goals, Congress mandated that state and local educational agencies receiving
assistance under the IDEA establish procedures to ensure the provision of such
services and the protection of these rights. See id. § 1415(a). To identify
necessary services, the IDEA requires representatives of the responsible
educational agencies, in meetings with parents and teachers, to develop an
individualized education program (IEP) for each child with a disability. The IEP
includes a written statement of the present educational level of such child, of
annual goals and short-term instructional objectives, and of “specific educational
2
Congress changed the EHA’s name to the IDEA in 1990. See Pub. L. No.
101-476, 104 Stat. 1141 (1990). We use EHA and IDEA interchangeably
throughout the opinion.
3
Congress amended the IDEA and recodified several provisions in 1997.
See Individuals with Disabilities Education Act Amendments of 1997, Pub. L. No.
105-17, 111 Stat. 37 (1997). The material events giving rise to the case at hand
occurred prior to these amendments. Moreover, the 1997 amendments are not
retroactive. See Fowler v. Unified Sch. Dist. No. 259 , 128 F.3d 1431, 1434-35
(10th Cir. 1997). We therefore apply and cite to the IDEA provisions as codified
prior to enactment of the 1997 amendments. In any event, no party has suggested
that any revision would change the analysis or outcome of this case.
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services to be provided to such child.” § 1401(a)(20). Before developing or
changing a child’s IEP, the agency must provide written notice to the parents.
See id. § 1415(b)(1)(C). The agency must also provide parents who present
complaints regarding these matters an impartial due process hearing. See id.
§ 1415(b)(1)-(2). Any party aggrieved by the decision of a local educational
agency may appeal to the state educational agency. See id. § 1415(c). Further, an
aggrieved party has the right to bring a civil action with respect to its complaints
if the state has not provided an administrative appeals process or if the aggrieved
party is dissatisfied with the findings or decision of the administrative appeal
agency. See id. § 1415(e).
II.
“Because this appeal arises on a motion to dismiss, we construe the facts,
and reasonable inferences that might be drawn from them, in favor of the
plaintiff.” Breidenbach v. Bolish, 126 F.3d 1288, 1292 (10th Cir. 1997).
According to Plaintiff, during the five-year period between 1992 and 1997,
Defendants failed to provide her with the behavioral programming, augmentative
communication, and tube feeding services identified in her IEP.
She also asserts Defendants repeatedly “placed her in a windowless closet,
restrained in a stroller without supervision,” contrary to her IEP. During one of
these incidents she tipped over and hit her head on the floor, suffering serious
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physical injuries, including a skull fracture and exacerbation of a seizure disorder,
which kept her from attending school for the remainder of the term. The school
district thereafter failed to provide homebound schooling adequate to insure the
free appropriate public education to which she was entitled.
In August 1997, Plaintiff moved to a new school district and began
attending a different school, neither of which is a party to this action. In February
1998, she requested an administrative hearing from the defendant school district
to “contest certain actions of . . . [district] personnel.” In her request, Plaintiff
sought “any relief” available through the administrative process, “including
money damages and attorney fees.” Plaintiff’s hearing request was denied by the
hearing officer, who ruled that he lacked jurisdiction “as the petitioner does not
reside within the school district,” and that he lacked authority to grant the
requested relief.
Thereafter, Plaintiff filed the instant suit, raising two claims. First, she
alleged that the school district and the board of education violated her rights
under the ADA by excluding her from participation in publicly funded general
and special education programs based on her disability. Second, she brought an
action under 42 U.S.C. § 1983, alleging that the school district, the board of
education, and several individual district employees violated her rights under the
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IDEA by denying her a free and appropriate public education. Plaintiff
specifically seeks monetary damages for both the ADA and § 1983 claims.
Defendants moved to dismiss, arguing that (1) Plaintiff failed to exhaust
her administrative remedies; (2) damages are unavailable under the IDEA and
therefore unavailable in a § 1983 claim based on an IDEA violation; (3) the IDEA
does not allow individual liability actions, and, therefore, individuals cannot be
liable under a § 1983 claim based on an IDEA violation; and (4) the individual
defendants were entitled to qualified immunity. The district court dismissed
Plaintiff’s § 1983 claim as it applied to one of the individual defendants but
denied the motion in all other respects, and the remaining defendants brought this
appeal.
III.
“We review the denial or grant of a motion to dismiss de novo, applying the
same standard used by the district court.” Breidenbach , 126 F.3d at 1291. We
first address the viability of Plaintiff’s IDEA-based § 1983 claims. The district
court determined that the IDEA allows for damage awards and that it may be
enforced against individuals. Therefore, the court reasoned, Plaintiff can likewise
sue individuals and seek damages in a § 1983 suit based on the IDEA. The
district court’s analysis presupposes that § 1983 may be used to enforce the IDEA
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in the first place. This court has not previously ruled on this issue. 4
Circuits that
have addressed the question have not come to the same conclusion. 5
4
In L.C. v. Utah State Board of Education , 57 F. Supp. 2d 1214, 1220 (D.
Utah 1999), the district court stated that two Tenth Circuit cases have held that
§ 1983 claims may be predicated on the IDEA. We respectfully disagree with the
district court’s interpretations. Hayes v. Unified School District No. 377 , 877
F.2d 809, 811 (10th Cir. 1989), involved a plaintiff asserting a § 1983 claim
based on alleged constitutional violations, not IDEA violations. I n the other case
cited by the district court, Association For Community Living v. Romer , 992 F.2d
1040, 1042 (10th Cir. 1993), it appears the plaintiffs’ § 1983 claim asserted
violations of the IDEA and the Equal Protection Clause. However, in dismissing
the plaintiffs’ claims for failure to exhaust their administrative remedies, the
panel did not discuss the viability of the IDEA-based § 1983 claim. Thus, we do
not read Romer as holding, or otherwise compelling the conclusion, that IDEA
violations may form the substantive basis for § 1983 claims.
5
A majority of the circuits have case law holding or at least implying that
§ 1983 suits may be based on IDEA violations. See Mrs. W. v. Tirozzi , 832 F.2d
748, 753-55 (2d Cir. 1987) (express holding); W.B. v. Matula , 67 F.3d 484, 493-
94 (3d Cir. 1995) (express holding); Angela L. v. Pasadena Indep. Sch. Dist. , 918
F.2d 1188, 1193 n.3 (5th Cir. 1990) (dicta); Crocker v. Tennessee Secondary Sch.
Athletic Ass’n , 980 F.2d 382, 387 (6th Cir. 1992) (implying that the IDEA may be
the basis for a § 1983 suit, but holding that damages were not available);
Heidemann v. Rother , 84 F.3d 1021, 1032-33 (8th Cir. 1996) (same); Digre v.
Roseville Sch. Indep. Dist. No. 623 , 841 F.2d 245, 249-50 (8th Cir. 1988)
(express holding); N.B. by D.G. v. Alachua County Sch. Bd. , 84 F.3d 1376, 1379
(11th Cir. 1996), cert. denied , 519 U.S. 1092 (1997) (holding that plaintiff must
exhaust administrative remedies before proceeding with an IDEA-based § 1983
claim (though not specifically addressing the claim’s viability)); Walker v.
District of Columbia , 969 F. Supp. 794, 796-97 (D.D.C. 1997) (express holding).
The Fourth Circuit has held that § 1983 cannot be used to remedy a
violation of the IDEA. See Sellers v. Sch. Bd. , 141 F.3d 524, 529-32 (4th Cir.
1998), cert. denied , 525 U.S. 871 (1998).
The First, Seventh, and Ninth Circuits have cases appearing to go both
ways. Compare Doe v. Town of Framingham , 965 F. Supp. 226, 230 (D. Mass.
1997) (assuming § 1983’s applicability to the IDEA), with Andrew S. v. Sch.
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It is well settled that § 1983 is “a generally and presumptively available
remedy for claimed violations of federal law.” Livadas v. Bradshaw , 512 U.S.
107, 133 (1994). Nonetheless, Congress can foreclose recourse to § 1983 “either
by express words or by providing a comprehensive alternative enforcement
scheme.” Id. ; see also Blessing v. Freestone , 520 U.S. 329, 341 (1997). Congress
has not expressly prohibited § 1983 suits as remedies for IDEA violations, so we
must turn to the question of whether the IDEA’s administrative remedies
nevertheless imply congressional intent to do so. Supreme Court precedent guides
our inquiry.
In Smith v. Robinson , 468 U.S. 992 (1984), the Supreme Court considered
whether the plaintiffs could pursue “virtually identical” claims for a free
appropriate education under the EHA (IDEA’s predecessor), the Rehabilitation
Act, and § 1983 (based on alleged Equal Protection and Due Process
deprivations). Id. at 1009. The Court concluded that the EHA’s thorough
enforcement mechanisms indicated Congress’ intent to proscribe such a course of
Comm. , 59 F. Supp. 2d 237, 244 (D. Mass. 1999) (stating that garden variety.
violations of the IDEA cannot form the basis of a § 1983 claim); compare Marie
O. v. Edgar , 131 F.3d 610, 621-22 (7th Cir. 1997) (stating § 1983 may be used to
enforce the IDEA), with Anderson v. Thompson , 658 F.2d 1205, 1214-17 (7th
Cir. 1981) (prohibiting IDEA-based § 1983 claims); compare Emma C. v. Eastin ,
985 F. Supp. 940, 945 (N.D. Cal. 1997) (holding that Congress “specifically
authorized § 1983 actions predicated on the IDEA”), with Dep’t of Educ. v.
Katharina D. , 727 F.2d 809, 819-20 (9th Cir. 1983), cert. denied , 471 U.S. 1117
(1985) (holding that the IDEA cannot provide the basis for a § 1983 claim).
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action. See id. at 1012-13, 1018. For example, as to the plaintiffs’ § 1983 claim
based on the Equal Protection Clause, the Court stated that
where the EHA is available to a handicapped child asserting a right
to a free appropriate public education, based either on the EHA or on
the Equal Protection Clause of the Fourteenth Amendment, the EHA
is the exclusive avenue through which the child and his parents or
guardian can pursue their claim.
Id. at 1013. Smith did not specifically involve the question of whether the EHA
precludes § 1983 suits based on EHA violations. In fact, the Court expressly
recognized that the plaintiffs’ § 1983 claims alleged constitutional violations, not
EHA violations. See id. at 1008-09. Nonetheless, the Court’s holding that the
EHA provided a comprehensive enforcement scheme that preempted other
overlapping but independent statutory or constitutional claims necessarily meant
that the EHA also supplanted § 1983 claims based simply on EHA violations.
In response to Smith , Congress amended the EHA in 1986. See Pub. L. No.
99-372, 100 Stat. 796 (1986); S. Rep. No. 99-112, at 2 (1985), reprinted in 1986
U.S.C.C.A.N. 1798, 1799. Among other provisions, Congress added § 1415(f),
which stated in pertinent part: “Nothing in this title shall be construed to restrict
or limit the rights, procedures, and remedies available under the Constitution, title
V of the Rehabilitation Act of 1973, or other Federal statutes protecting the rights
of handicapped children and youth.” This provision obviously voided Smith ’s
broad holding that the EHA precludes overlapping but independent claims
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otherwise cognizable under the Constitution, the Rehabilitation Act, or other
Federal laws. See Hayes v. Unified Sch. Dist. No. 377 , 877 F.2d 809, 812 (10th
Cir. 1989) (“Congress’ amendment of the EHA makes clear that the EHA is not
the exclusive remedy available to handicapped students seeking public
educational benefits.”); H.R. Rep. No. 99-296, at 6 (1985) (stating that § 1415(f)
is intended to reaffirm “the viability of section 504 [of the Rehabilitation Act]
and other federal statutes such as 42 U.S.C. 1983 as separate from but equally
viable with the EHA as vehicles for securing the rights of handicapped children
and youth”). It is less obvious, however, whether Congress intended § 1415(f) to
also overrule Smith ’s more narrow implication that the EHA provides a
comprehensive remedial framework that forecloses recourse to § 1983 as a
remedy for strictly EHA violations. This difficult question has created a split in
the circuits. Compare, e.g. , Marie O. v. Edgar , 131 F.3d 610, 622 (7th Cir. 1997)
(“§ 1415(f) was enacted for the express purpose of ensuring that § 1983 claims
would be available to enforce the IDEA.” ), and W.B. v. Matula , 67 F.3d 484, 494
(3d Cir. 1995) (same), with Sellers v. Sch. Bd. , 141 F.3d 524, 530-32 (4th Cir.
1998) (stating that § 1415(f) does not allow plaintiffs to sue under § 1983 for an
IDEA violation and that § 1415 does not overrule Smith on that point).
We agree with the Fourth Circuit that § 1415(f) left intact Smith ’s
implication that the EHA may not provide the basis for § 1983 claims. See
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Sellers , 141 F.3d at 529-30. Post- Smith Supreme Court precedent compels this
conclusion. Since Congress passed § 1415(f) in 1986, the Court has nevertheless
cited Smith and the EHA/IDEA on at least two occasions as an example of an
exhaustive legislative enforcement scheme that precludes § 1983 causes of action.
See Blessing , 520 U.S. at 347-48; Wright v. City of Roanoke Redevelopment and
Hous. Auth. , 479 U.S. 418, 423-24, 427 (1987). In Wright , the Court noted that
the EHA itself “provided for private judicial remedies, thereby evidencing
congressional intent to supplant the § 1983 remedy.” 479 U.S. at 427. The
Blessing Court discussed Smith as one of only two cases in which it had “found a
remedial scheme sufficiently comprehensive to supplant § 1983.” 520 U.S. at
347. Moreover, the Court used the EHA/IDEA in both cases as a benchmark for
assessing the comprehensiveness of the remedial scheme provided by the statutes
in question. See id. at 348; Wright , 479 U.S. at 427. Based on these cases, it
appears the Supreme Court considers Smith to be alive and well insofar as it
asserts that § 1983 may not be used to remedy IDEA violations. Accordingly, we
reverse the trial court’s denial of the motion to dismiss Plaintiff’s IDEA-based
§ 1983 claims against the school district, the board of education, and the
individual defendants. This conclusion moots the qualified immunity issues.
Furthermore, in light of our holding and Plaintiff’s failure to make an
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independent IDEA claim, we need not address whether the IDEA imposes
individual liability or permits damage awards.
IV.
Defendants argue that the trial court erred in denying their motion to
dismiss Plaintiff’s ADA claim against the school district and the board of
education for failure to exhaust her administrative remedies.
Although Plaintiff proceeds under the auspices of the ADA, the IDEA
nonetheless requires her to first exhaust its administrative procedures and
remedies prior to commencing her ADA suit if she is “ seeking relief that is also
available under ” the IDEA. 20 U.S.C. § 1415(f) (emphasis added). Like the
Seventh Circuit, we understand “available” relief “to mean relief for the events,
condition, or consequences of which the person complains, not necessarily relief
of the kind the person prefers,” Charlie F. v. Bd. of Educ. , 98 F.3d 989, 992 (7th
Cir. 1996), or specifically seeks. Thus, our primary concern in determining
whether a plaintiff must utilize the IDEA’s administrative procedures relates to
the source and nature of the alleged injuries for which he or she seeks a remedy,
not the specific remedy itself. See Hayes v. Unified Sch. Dist. No. 377 , 877 F.2d
809, 812 (10th Cir. 1989) (stating that the IDEA’s remedies must be exhausted
before a plaintiff files a non-IDEA suit if that “suit could have been filed under
the” IDEA). In essence, the dispositive question generally is whether the plaintiff
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has alleged injuries that could be redressed to any degree by the IDEA’s
administrative procedures and remedies. If so, exhaustion of those remedies is
required. If not, the claim necessarily falls outside the IDEA’s scope, and
exhaustion is unnecessary. Where the IDEA’s ability to remedy a particular
injury is unclear, exhaustion should be required in order to give educational
agencies an initial opportunity to ascertain and alleviate the alleged problem.
See, e.g. , Charlie F. , 98 F.3d at 992, 993.
So far as we can tell in the instant case, Plaintiff seeks damages solely to
redress the fractured skull and other physical injuries she suffered allegedly as a
result of the school district’s and board of education’s purported ADA violations.
Plaintiff makes no complaints regarding her current educational situation. Indeed,
she expressly attests that her new school “meets her educational needs” and that
she presently receives “the full benefits of a free and appropriate education in an
integrated, least restrictive educational environment.” Under these narrow
circumstances, we fail to see how the IDEA’s administrative remedies, oriented as
they are to providing prospective educational benefits, could possibly begin to
assuage Plaintiff’s severe physical, and completely non-educational, injuries.
That is not to say damages are unavailable under the IDEA. We have not
previously addressed that question and need not to resolve this case. Our holding
simply recognizes the fact that even if damages are available under the IDEA they
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should be awarded in civil actions, not in administrative hearings. Cf. Covington
v. Knox County Sch. Sys. , 205 F.3d 912, 918 (6th Cir. 2000) (stating that
damages are “unavailable through the [IDEA] administrative process”); W.B. v.
Matula , 67 F.3d 484, 494-96 (3d Cir. 1995) (holding that IDEA-based § 1983
suits permit damage awards, but damages cannot be awarded during the course of
the IDEA’s administrative proceedings).
We affirm the district court’s denial of Defendants’ motion to dismiss for
failure to exhaust administrative remedies. Under the narrow circumstances of
this case, exhaustion was unnecessary because, so far as we can tell, Plaintiff’s
ADA claim is not seeking “relief that is also available” under the IDEA.
In conclusion, we note that other circuits, although employing slightly
different approaches to the problem, have reached similar conclusions under
similar circumstances. For example, in Witte v. Clark County Sch. Dist. , 197
F.3d 1271, 1275-76 (9th Cir. 1999), the Ninth Circuit held that exhaustion was
not required where the plaintiff was seeking “only monetary damages” for alleged
“physical abuse and injury” and “all educational issues already have been
resolved to the parties’ mutual satisfaction.” The court noted that “[t]he remedies
available under the IDEA would not appear to be well suited to addressing past
physical injuries adequately; such injuries typically are remedied through an
award of monetary damages.” Id. at 1276. Likewise, in Matula , 67 F.3d at 496,
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the Third Circuit refused to require administrative exhaustion in a claim for
compensatory damages in part because the parties had already settled their
disputes over IDEA rights.
Moreover, circuit court cases cited by Defendants that have required
plaintiffs who seek damages to exhaust their IDEA administrative remedies have
done so where the plaintiffs’ alleged injuries were educational in nature and
therefore presumptively redressable through the IDEA’s administrative
procedures. See, e.g. , Thompson v. Bd. of Special Sch. Dist. 1 , 144 F.3d 574,
580 (8th Cir. 1998) (requiring exhaustion where plaintiff sought damages and
one-on-one tutoring to remedy alleged denial of free and appropriate public
education, and dismissing § 1983 claim on insufficient evidence grounds); Charlie
F., 98 F.3d at 993 (requiring exhaustion where the plaintiff alleged “that his
education has suffered”); N.B. by D.G. v. Alachua County Sch. Bd. , 84 F.3d
1376, 1378 (11th Cir. 1996) (requiring exhaustion where the plaintiff’s alleged
injuries included segregation from non-disabled children and unnecessary absence
from school). Under those distinct circumstances, we would also require
exhaustion.
The denial of the motion to dismiss the § 1983 actions is REVERSED. The
denial of the motion to dismiss the ADA action is AFFIRMED. The case is
REMANDED for further proceedings consistent with this opinion.
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