B.M. Ex Rel. E.M. v. New York City Department of Education , 569 F. App'x 57 ( 2014 )

13-2182-cv
B.M. v. New York City Dep’t of Educ.,
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 18th day of June, two thousand fourteen.
4
5 Present:
6 ROBERT D. SACK,
7 DEBRA ANN LIVINGSTON,
8 RAYMOND J. LOHIER, JR.,
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10 Circuit Judges.
11 _____________________________________
12
13 B.M., INDIVIDUALLY AND ON BEHALF OF E.M., A
14 CHILD WITH A DISABILITY,
15
16 Plaintiff-Appellant,
17
18 v. 13-2182-cv
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20 NEW YORK CITY DEPARTMENT OF EDUCATION,
21
22 Defendant-Appellee.*
23 _____________________________________
24
25 For Plaintiff-Appellant: PHILIP B. ABRAMOWITZ, Cuddy Law Firm,
26 P.C., Auburn, New York
27
28 For Defendant-Appellee: MICHAEL J. PASTOR (Kristin M. Helmers and
*
The Clerk of Court is directed to amend the caption to conform to the listing above.
1 Brian J. Reimels, on the brief), of Counsel, for
2 Zachary Carter, Corporation Counsel of the
3 City of New York, New York, New York
4
5 Appeal from a judgment of the United States District Court for the Southern District of New
6 York (Furman, J.).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
8 DECREED that the judgment of the district court is AFFIRMED.
9 Plaintiff B.M. appeals an award of summary judgment in favor of the New York City
10 Department of Education (the “District”), which B.M. alleges failed to provide her son E.M. with
11 a free and appropriate public education (“FAPE”) in violation of the Individuals with Disabilities
12 Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. “We review de novo a district court’s award
13 of summary judgment in an IDEA case.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546
14 F.3d 111, 118 (2d Cir. 2008). We also assume the parties’ familiarity with the facts and the record
15 of prior proceedings, which we reference only as necessary to explain our decision.
16 The IDEA provides states with funds to ensure that “all children with disabilities” receive
17 a FAPE. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). A state receiving
18 these funds must then create an individualized education plan (“IEP”) for each qualifying student,
19 tailored to that child’s abilities and needs, see 20 U.S.C. § 1414(d), which is “reasonably calculated
20 to enable the child to receive educational benefits,” Bd. of Educ. v. Rowley, 458 U.S. 176, 207
21 (1982). If a parent believes that her child’s IEP or the school’s implementation of the IEP does not
22 comply with the IDEA, the parent may file a “due process complaint” with the appropriate state
23 agency. See 20 U.S.C. § 1415(b)(6). Districts are then permitted a thirty-day “resolution period”
24 to address alleged deficiencies without penalty. See id. § 1415(f)(1)(B). In light of the resolution
2
1 period, a parent must assert all alleged deficiencies in the due process complaint lest a claimant be
2 permitted to “sandbag” school districts at a later stage in the proceeding. See R.E. v. N.Y.C. Dep’t
3 of Educ., 694 F.3d 167, 187-88 & n.4 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013). Once the
4 resolution period has run, a parent may continue to a due process hearing before an independent
5 hearing officer (“IHO”) and appeal the resulting decision to a state review officer (“SRO”). See 20
6 U.S.C. § 1415(f); N.Y. Educ. Law § 4404(2). Only after the state administrative process is
7 exhausted may either party bring a civil action in state or federal court to challenge the SRO’s
8 decision. See 20 U.S.C. § 1415(f)-(g), (i).
9 On appeal, B.M. primarily asserts that E.M.’s teacher’s lack of special education certification
10 denied E.M. a FAPE, and that the district court erred in determining that it lacked jurisdiction over
11 this claim due to B.M.’s failure to include the claim in her due process complaint. We have
12 repeatedly held that the “[f]ailure to exhaust the [IDEA’s] administrative remedies deprives the court
13 of subject matter jurisdiction.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d
14 Cir. 2008) (citing Polera v. Bd. of Educ. of Newburgh, 288 F.3d 478, 483 (2d Cir. 2002)). In support
15 of her claim, B.M. argues that we must abandon this precedent in light of Supreme Court decisions
16 clarifying the nature of jurisdictional bars. See, e.g., Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012)
17 (directing that courts interpret statutory requirements to be jurisdictional only where “the
18 [l]egislature clearly states that a threshold limitation on a statute’s scope shall count as
19 jurisdictional,” whereas if “Congress does not rank a statutory limitation on coverage as
20 jurisdictional, courts should treat the restriction as nonjurisdictional” (internal quotation marks
21 omitted)). We conclude, however, that the issue need not be decided here. The District has
22 challenged B.M.’s failure to exhaust from its first opportunity, mooting the determination whether
3
1 the exhaustion requirement is jurisdictional or operates as an affirmative (and, here, successful)
2 defense.
3 B.M. argues to the contrary that she raised the certification issue in her complaint, thus
4 exhausting the claim, and that the District “opened the door” to her claim. However, none of the
5 nine detailed claims in B.M.’s due process complaint can be interpreted to encompass special
6 education certification, and the District’s only mention of the relevant teacher’s qualifications at the
7 hearing came during foundational questions, not in support of an affirmative, substantive argument.
8 See M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 250 (2d Cir. 2012) (applying “opening the door”
9 exception to exhaustion when the district made an affirmative argument in its opening statement and
10 through its first witness, and the parents countered the argument in rebuttal). B.M. also argues that
11 the issue of teacher certification is excused from the exhaustion requirement because it concerns the
12 “implementation” of E.M.’s IEP and not its content. See Polera, 288 F.3d at 488-89. However,
13 B.M. did not raise this argument before the district court, and it is therefore waived.
14 Finally, B.M. asserts several procedural challenges that were raised in her due process
15 complaint. However, B.M. offers no reason to depart from the IHO’s finding that these claims were
16 “substantially resolved” during the resolution period, when the District was permitted to resolve
17 B.M.’s complaint without penalty. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 113
18 (2d Cir. 2007) (instructing courts to give “due weight” to state IDEA proceedings). Moreover, at
19 oral argument, B.M. stated that the only relief she sought was a remand to the IHO for a
20 determination whether E.M. is entitled to corrective services. Because the IHO has already
21 determined that E.M. is not entitled to corrective services on the basis of these claims, we also deem
22 these claims to be moot and rightly dismissed.
23
4
1 We have considered all of B.M.’s remaining arguments and find them to be without merit.
2 Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of the District.
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5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
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