Coleman v. Newburgh Enlarged City Sch. Dist., No. 06-1466 (2d Cir. 2007)

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06-1466-cv Coleman v. Newburgh Enlarged City Sch. Dist . 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2006 5 (Argued: March 7, 2007 Decided: September 25, 2007) 6 Docket Nos. 06-1466-cv(L), 06-1732-cv(XAP) 7 -----------------------------------------------------x 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ELZIE DESHAWN COLEMAN, Plaintiff-Appellee-Cross-Appellant, -- v. -NEWBURGH ENLARGED CITY SCHOOL DISTRICT, PETER COPELETTI, Individually and as Principal of Newburgh Free Academy High School, and BOARD OF EDUCATION OF THE CITY OF NEWBURGH SCHOOL DISTRICT, Defendants-Appellants-Cross-Appellees.* -----------------------------------------------------x B e f o r e : 25 WINTER, WALKER and STRAUB, Circuit Judges. Appeal from an order of the United States District Court for 26 the Southern District of New York (Stephen C. Robinson, Judge) 27 entered on February 28, 2006, awarding attorneys fees and costs 28 in favor of a disabled student as a prevailing party under the 29 Individuals with Disabilities Education Act s fee-shifting 30 provision, 20 U.S.C. § 1415(i)(3)(B). 1 2 * We direct the clerk to alter the official caption to conform to the caption provided here. 1 1 REVERSED. 2 Judge Straub concurs in the judgment of the Court and files 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 a separate concurring opinion. STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, New York (Ostrer Rosenwasser, LLP, Chester, New York, Law Offices of Michael H. Sussman, Goshen, New York, on the brief) for plaintiff-appelleecross-appellant. MARK C. RUSHFIELD, Shaw & Perelson, LLP, Highland, New York for defendants-appellants-crossappellees. JOHN M. WALKER, JR., Circuit Judge: In this case, a disabled child was subject to discipline by 21 his school district that entitled him to several administrative 22 remedies under the Individuals with Disabilities Education Act 23 ( IDEA ), 20 U.S.C.A. § 1400 et seq., but the exhaustion of which 24 would likely have prohibited him from graduating with his class 25 and, incidently, kept him from participating in extracurricular 26 activities. 27 stated, is whether, under the circumstances of this case, he 28 should have been excused from exhausting his administrative 29 remedies under the IDEA and allowed to go directly into federal 30 court so that, if successful, he could enjoin the school 31 district s disciplinary action without missing graduation. 32 The principal question we are presented with, simply Plaintiff Elzie Deshawn Coleman, a child with a disability, 2 1 filed an action alleging that Newburgh Enlarged City School 2 District, Peter Copeletti, individually and as principal of 3 Newburgh Free Academy High School ( NFA ), and the Board of 4 Education of the City of Newburgh School District (collectively, 5 Defendants ) violated his rights under the IDEA. 6 Coleman challenged the disciplinary process that led to his 7 suspension from NFA and moved for a preliminary injunction 8 ordering Defendants to reinstate him immediately for the pendency 9 of his administrative appeals. In particular, Defendants, in opposing the 10 motion, argued that the district court lacked subject matter 11 jurisdiction because Coleman had failed to exhaust the 12 administrative remedies available to him under the IDEA. 13 district court for the Southern District of New York (Stephen C. 14 Robinson, Judge) rejected Defendants argument on the basis that 15 exhaustion would be futile because Coleman was scheduled to 16 graduate less than two months following the disciplinary hearing 17 and granted Coleman s motion in an opinion and order dated May 18 17, 2004. 19 F. Supp. 2d 446 (S.D.N.Y. 2004). 20 court awarded Coleman $28,431.52 in attorneys fees as a 21 prevailing party under the IDEA s fee-shifting provision, 20 22 U.S.C. § 1415(i)(3)(B). 23 24 The See Coleman v. Newburgh Enlarged City Sch. Dist., 319 Soon thereafter, the district On appeal, Defendants contend, inter alia, that the district court s award of attorneys fees was improper because its 3 1 determination in Coleman s underlying action that exhaustion 2 would be futile was error. 3 have dismissed Coleman s complaint. 4 award of attorneys fees. We agree. The district court should We therefore reverse its BACKGROUND2 5 6 Coleman attended NFA as a disabled student pursuant to an 7 individualized education program ( IEP ) implemented under the 8 IDEA. 9 accomplished high school track athlete, was involved in an See 20 U.S.C. § 1414(d). On April 20, 2004, Coleman, an 10 altercation with another student at NFA. 11 school, arrested by the Newburgh Police Department,3 and promptly 12 suspended for five days pending a disciplinary hearing. 13 He was removed from the Upon prior notice, the disciplinary hearing was held on 14 April 28, 2004 before a designated hearing officer, Edmund V. 15 Caplicki, Jr. 16 physical altercation with another student on school grounds; (b) 17 a crowd grew as a result of that altercation; (c) a series of 18 subsequent altercations broke out in the school between other 19 students; and (d) intervention by the Newburgh Police Department 20 was required. 21 Saturnelli, the acting superintendent of schools, extended 1 2 3 Based upon Caplicki s findings, Dr. Annette 2 1 2 Caplicki found that (a) Coleman had engaged in a 3 The facts are drawn principally from the district court s opinion and order of May 17, 2004. See Coleman, 319 F. Supp. 2d at 448-50. The record reveals only that these criminal charges were resolved on April 28, 2004, not the result. 4 1 Coleman s suspension for five more days pending the Committee on 2 Special Education s ( CSE ) hearing as to whether Coleman s 3 conduct was a manifestation of his disability and the penalty 4 phase of the disciplinary hearing before Caplicki. 5 On May 3, 2004, the CSE held its manifestation hearing and 6 determined that Coleman s conduct was not attributable to his 7 disability. 8 series of administrative reviews first to a due process 9 hearing, see 20 U.S.C. § 1415(k)(3); 8 N.Y.C.R.R. § 201.11(a)(3), From this determination, Coleman had a right to a 10 before an impartial hearing officer ( IHO ) appointed by the 11 local board of education, see 8 N.Y.C.R.R. § 200.5(j), and then 12 to a second hearing before a state review officer ( SRO ) of the 13 New York Education Department, see 8 N.Y.C.R.R. § 200.5(k); see 14 also 20 U.S.C. § 1415(g). 15 have the due process hearing conducted on an expedited basis. 16 U.S.C. § 1415(k)(4)(B) ( [T]he State or local educational agency 17 shall arrange for an expedited hearing, which shall occur within 18 20 school days of the date the hearing is requested and shall 19 result in a determination within 10 school days after the 20 hearing. ); 8 N.Y.C.R.R. § 201.11(c) ( An expedited due process 21 hearing shall be completed within 15 business days of receipt of 22 the request for a hearing, except in the event the IHO grants a 23 specific extension of time at the request of a party, and a 24 decision shall be rendered within five business days after the Moreover, Coleman enjoyed the right to 5 20 1 last hearing date, but in no event later than 45 calendar days 2 after receipt of the request for a hearing, without exceptions or 3 extensions. ).4 4 out, were never pursued. 5 But these administrative reviews, as it turns Caplicki then heard the penalty phase of the disciplinary 6 hearing and, on May 4, 2004, issued a written report and 7 recommendation (the Report and Recommendation ) that Coleman be 8 (a) suspended for the balance of the 2003-2004 school year with 9 the opportunity to receive home tutoring and instruction; (b) 10 allowed to attend 2004 summer school and return to school for the 11 2004-2005 school year if additional credits were needed to earn 12 his high school diploma; and (c) placed on probationary status if 13 he attended the summer program or returned to school during the 14 2004-2005 school year. 15 letter to Coleman in which she adopted the Report and 16 Recommendation in full and ordered that Coleman be suspended from 17 school for the remainder of the 2003-2004 school year and receive 1 2 3 4 5 6 7 The same day, Dr. Saturnelli wrote a 4 As noted, an appeal from the impartial hearing officer s decision to a state review officer may be taken. Except in the event the state review officer grants a specific extension of time at the request of a party, a final decision must be reached not later than 30 days after the receipt of a request for a review. 8 N.Y.C.R.R. § 200.5(k)(2). 6 1 his IEP in an interim alternative education setting ( IAES ).5 2 Coleman sued Defendants in New York State Supreme Court on 3 April 30, 2004. 4 order to allow him to return to classes at NFA and participate in 5 extracurricular activities. 6 to federal court. 7 temporary restraining order and/or preliminary injunction, and 8 the district court heard argument. 9 His complaint sought a temporary restraining Defendants removed Coleman s action On May 6, Coleman renewed his request for a Also on May 6, Coleman appealed Dr. Saturnelli s guilt and 10 penalty decisions to the Board of Education. 11 the actions of Dr. Saturnelli and rejected Coleman s appeal to 12 that body in its entirety. 13 development to the district court on May 11. 14 The Board upheld Coleman s counsel reported this Defendants moved to dismiss Coleman s complaint on the basis 15 that the district court lacked subject matter jurisdiction 16 because Coleman had failed to exhaust all available 17 administrative remedies including, for instance, appealing 18 further to an IHO and then to an SRO. 19 that it had jurisdiction over the litigation because exhaustion 20 would be futile under the circumstances namely, that before 21 Coleman could fully exhaust, he would miss graduating with his 1 2 3 4 5 5 The district court found The IAES services, which the Defendants claim they have offered Coleman, include 5 hours of home teaching daily (2 hours for English, 2 hours for Science, 1 hour for Economics) and 1 hour with a prescriptive learning resource special education teacher. Coleman, 319 F. Supp. 2d at 449 n.5. 7 1 class and, incidentally, participating in extracurricular 2 activities. 3 a preliminary injunction and ordered that he immediately be 4 reinstated at NFA and that he be allowed to attend classes and to 5 participate in extracurricular activities. 6 Supp. 2d at 457. 7 emergency stay. 8 the stay, finding that Defendants failed to demonstrate 9 irreparable harm. The district court then granted Coleman s motion for Coleman, 319 F. Defendants appealed to this court and sought an On June 3, 2004, a panel of this court denied Within a few weeks of that decision, on June 10 24, Coleman graduated from NFA. 11 stipulation and agreement with Coleman, withdrew their appeal as 12 moot on July 7, 2004. 13 It followed that Defendants, by On July 12, days after Defendants decision to withdraw 14 their appeal, Coleman moved in the district court pursuant to 20 15 U.S.C. § 1415(i)(3)(B) for attorneys fees in the amount of 16 $54,218.03. 17 Civ. P. 12(b)(1) and (6) cross-motion to dismiss the complaint. 18 The district court awarded Coleman $28,431.52 in attorneys fees. 19 This appeal followed. 20 21 Defendants opposed the application through a Fed. R. DISCUSSION Defendants argue that the district court erred in awarding 22 attorneys fees to Coleman because the complaint should have been 23 dismissed for lack of subject matter jurisdiction based on a 24 failure to exhaust administrative remedies. 8 See, e.g., McGinty 1 v. New York, 251 F.3d 84, 100 (2d Cir. 2001) ( It . . . follows 2 that where we lack subject matter jurisdiction, we also lack 3 jurisdiction to award attorney s fees. ). 4 I. 5 The Jurisdictional Label Before turning to the merits, we pause to consider whether 6 this appeal should be characterized as one involving 7 jurisdictional limitations. 8 9 The IDEA s so-called exhaustion requirement is grounded in 20 U.S.C. § 1415(i)(2)(A), which provides a cause of action to 10 those parties who are aggrieved by a final decision of either 11 an impartial due process hearing officer, if the state does not 12 have an appeals process, or the state educational agency, if it 13 does. 14 requirement is jurisdictional. 15 of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 16 2002) ( A plaintiff s failure to exhaust administrative remedies 17 under the IDEA deprives a court of subject matter 18 jurisdiction. ); Murphy v. Arlington Cent. Sch. Dist. Bd. of 19 Educ., 297 F.3d 195, 199 (2d Cir. 2002) ( The plaintiff s failure 20 to exhaust administrative remedies ordinarily deprives this court 21 of subject matter jurisdiction over any IDEA claims. ). 22 We have routinely stated that the IDEA s exhaustion See, e.g., Polera v. Bd. of Educ. Recently, however, the Supreme Court has admonished lower 23 courts to more carefully distinguish between jurisdictional rules 24 and mandatory claims-processing rules, see Eberhart v. United 9 1 States, 546 U.S. 12, 16 (2005) (per curiam) ( Clarity would be 2 facilitated . . . if courts and litigants used the label 3 jurisdictional not for claim-processing rules, but only for 4 prescriptions delineating the classes of cases (subject-matter 5 jurisdiction) and the persons (personal jurisdiction) falling 6 within a court s adjudicatory authority. ) (quoting Kontrick v. 7 Ryan, 540 U.S. 443, 455 (2004)), the latter being subject to 8 waiver and forfeiture, see id. at 19 ( These claim-processing 9 rules thus assure relief to a party properly raising them, but do 10 not compel the same result if the party forfeits them. ). After 11 Kontrick and Eberhart, we have been equivocal in our discussion 12 of the IDEA s exhaustion requirement, acknowledging our statement 13 in Polera that the failure to exhaust IDEA administrative 14 remedies deprive[s][a] court of subject matter jurisdiction but 15 also referring to the IDEA s exhaustion requirements as the 16 defendants non-exhaustion defense, in a case where we 17 contemplated, but did not decide, whether those requirements are 18 subject to waiver. 19 Cir. 2006) (citing Polera, 288 F.3d at 488-90); see also Paese v. 20 Hartford Life Accident Ins. Co., 449 F.3d 435, 444 n.2 (2d Cir. 21 2006) (stating that we have yet to reach a clear conclusion on 22 whether the failure to exhaust administrative remedies under the 23 IDEA is an affirmative defense, not a jurisdictional bar) (citing Handberry v. Thompson, 436 F.3d 52, 60 (2d 10 1 Handberry, 436 F.3d at 60).6 2 But we are not forced to decided whether our precedent, 3 which labels the IDEA s exhaustion requirement as a rule 4 affecting subject matter jurisdiction rather than an inflexible 5 claim-processing rule that may be waived or forfeited, remains 6 good law after Kontrick and Eberhart because there can be no 7 claim of waiver or forfeiture here. 8 challenged the district court s exhaustion ruling throughout this 9 litigation. Defendants have consistently We took a similar position in United States v. 10 Moreno-Rivera, 472 F.3d 49, 50 n.2 (2d Cir. 2006) (per curiam), 11 where we noted that Kontrick and Eberhart cast doubt on our 12 precedent that considers the time limits of Fed. R. App. P. 4(b) 13 as jurisdictional, but declined to revisit the question because 14 the government had properly raised the untimely nature of 15 defendant s notice of appeal in its motion to dismiss.7 16 v. United States Dep t of Justice, 480 F.3d 104, 107 (2d Cir. 17 2007), however, we observed that Eberhart provided reason for us 18 to treat as not jurisdictional, though mandatory (and hence 1 2 3 4 5 6 6 1 2 3 4 5 7 In Zhong We note that the Seventh Circuit has recently reaffirmed its conclusion that the IDEA s exhaustion requirement is only an affirmative defense, not a jurisdictional bar, because lack of exhaustion usually is waivable. Mosely v. Bd. of Educ., 434 F.3d 527, 532-33 (7th Cir. 2006) (quoting Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996)). The Supreme Court recently answered affirmatively the related question of whether the time limit in Rule 4(a)(6) which in civil cases allows district courts to reopen Rule 4(a)(1)(A) s 30-day filing period by 14 days is jurisdictional. Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007). 11 1 waivable) the requirement of issue exhaustion provided in 8 2 U.S.C. § 1252(d) and decided to so hold because the question was 3 determinative of the asylum case before us. 8 4 That Defendants are challenging the district court s 5 exhaustion determination by way of an appeal from an award of 6 attorneys fees does not impede our review of the issue. 7 IDEA s fee-shifting provision limits judicial discretion to 8 award attorney s fees to any action or proceeding brought under 9 this subsection. The W.G. v. Senatore, 18 F.3d 60, 64-65 (2d Cir. 10 1994) (quoting 20 U.S.C. § 1415(e)(4)(B), the predecessor to § 11 1415(i)(3)(B)). 12 encompasses the administrative procedures and civil actions 13 provided in 20 U.S.C. § 1415(i) and requires an independent 14 examination of whether the underlying action was properly 15 brought, which in turn requires an assessment of whether the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 8 The phrase brought under this subsection That Defendants were not able to attack the district court s exhaustion determination on direct appeal does not amount to waiver or forfeiture. Defendants stipulated to a dismissal of their appeal because Coleman graduated from NFA. Contrary to Coleman s suggestion, they could not have maintained their appeal on the basis that an award of attorneys fees might possibly be forthcoming. We surely would have dismissed such an appeal as moot rather than issue an advisory opinion. See, e.g., ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004) ( [U]nder the mootness doctrine, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant any effectual relief whatever to a prevailing party, we must dismiss the case, rather than issue an advisory opinion. ) (internal quotation marks omitted). Thus, there was no relief available to Defendants when they voluntarily withdrew their appeal because at that time Coleman had not moved for attorneys fees and it was not certain that he would do so. 12 1 district court s exhaustion determination was proper. 2 turn to that question. 3 II. 4 We now Exhaustion It is well settled that the IDEA requires an aggrieved 5 party to exhaust all administrative remedies before bringing a 6 civil action in federal or state court . . . . 7 Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004). 8 exhaustion requirement does not apply in situations in which 9 exhaustion would be futile. J.S. v. Attica However, the Polera, 288 F.3d at 488 (internal 10 quotation omitted). 11 demonstrate that adequate remedies are not reasonably available 12 or that the wrongs alleged could not or would not have been 13 corrected by resort to the administrative hearing process. 14 v. Bd. of Educ. of Rochester City Sch. Dist., 830 F.2d 444, 447 15 (2d Cir. 1987); Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 16 1992). 17 protection to the claimed right. 18 (internal quotation marks omitted). 19 futility rests with the party seeking to avoid the exhaustion 20 requirement. 21 To show futility, a plaintiff must J.G. For relief to be adequate, it must give realistic Murphy, 297 F.3d at 199 The burden of demonstrating Polera, 288 F.3d at 489 n.8. The district court found that Coleman had established that 22 exhaustion would be futile. The district court reasoned that 23 Coleman would not have been able to exhaust the full 24 administrative processes available review of the CSE s adverse 13 1 manifestation determination by an IHO and an SRO before the 2 school year ended. 3 graduation and been unable to participate in extracurricular 4 activities, including track and field events. 5 believed that these circumstances meant that there were no 6 adequate administrative remedies available. 7 As a result, Coleman would have missed his The district court We do not agree that the administrative processes available 8 to Coleman left him without an adequate remedy. The district 9 court erred by focusing on the detriment Coleman would have 10 suffered on account of being removed from NFA and placed in an 11 IAES until he graduated. 12 right, under the IDEA, to be reinstated at NFA while the 13 allegedly erroneous manifestation determination was reviewed. 14 did not. The sole question was whether he had a He 15 To be sure, 20 U.S.C. § 1415(k)(1)(F)(iii) establishes a 16 disabled child s right to be returned to the school from which he 17 or she was removed if the behavior that gave rise to the child s 18 violation of the school s code of conduct is determined to be a 19 manifestation of the child s disability. 20 safeguards provided in the IDEA entitle [t]he parent of a child 21 who disagrees with . . . the manifestation determination . . . 22 [to] a hearing, § 1415(k)(3)(A); see 8 N.Y.C.R.R. § 23 201.11(a)(3), conducted on an expedited basis, § 1415(k)(4)(B); 24 8 N.Y.C.R.R. § 201.11(c). And the procedural However, an aggrieved child does not 14 1 have the right to return to the school from which he or she has 2 been removed while the administrative and judicial review process 3 is underway. 4 stay-put provision establishes a student s right to a stable 5 learning environment during administrative and judicial review 6 and, thus, if that right is threatened, an immediate appeal is 7 necessary to give realistic protection to [it] ) (internal 8 quotation marks omitted). 9 issue in § 1415(k)(4)(A), stating: When an appeal [of a Cf. Murphy, 297 F.3d at 199 (Section 1415(j) the Congress specifically spoke to this 10 manifestation determination] has been requested . . . the child 11 shall remain in the interim alternative educational setting 12 pending the decision of the hearing officer . . . . 13 added). 14 child to remain in his original school. 15 had a right not to be removed from NFA based on an erroneous 16 determination of no manifestation, he had no right to 17 reinstatement while that determination was being reviewed. 18 (Emphasis Congress could have chosen, but did not, to permit the In sum, while Coleman As a broader matter, we are not persuaded that a disabled 19 child has a right, under the IDEA, to graduate on a date certain 20 or from a particular educational institution specifically, the 21 child s original school rather than an IAES. 22 is that all disabled children be given a free appropriate public 23 education. 24 Rowley, 458 U.S. 176, 181 (1982) (interpreting the predecessor The IDEA s mandate 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. 15 1 statute to the IDEA). In fulfilling this mandate, there are no 2 general time and manner requirements placed on the states other 3 than those provided in the IDEA and created by the states. 4 State of New York has administrative processes consistent with 5 these requirements. 6 (describing administrative processes available to Coleman); see 7 also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 8 (2d Cir. 1998) (describing the system New York has developed to 9 meet its obligations under the IDEA and to implement its own The See Coleman, 319 F. Supp. 2d at 450-51 10 policies regarding the education of disabled children). 11 carrying out of these administrative processes may take some 12 time, and in certain circumstances result in the child graduating 13 in an IAES after his anticipated graduation date, does not equate 14 to an inadequate remedy. 15 available . . . mean[s] relief for the events, condition, or 16 consequences of which the person complains, [even if] not 17 necessarily relief of the kind the person prefers. ) (internal 18 quotation marks omitted). 19 That the Cf. Polera, 288 F.3d at 488 ( [R]elief Coleman argues that because he was set to graduate in a few 20 weeks, his case presented an emergency situation such that 21 exhaustion would be futile. 22 emergency situation finds its origins in the IDEA s legislative 23 history. 24 parameters of the futility exception to include complaints that Coleman s reference to the term The House Report to the IDEA s predecessor defined the 16 1 an emergency situation exists (e.g., the failure to take 2 immediate action will adversely affect a child s mental or 3 physical health). 4 (1985) (emphasis added). 5 H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 Coleman s emergency situation argument is unpersuasive 6 here. In the first place, it fails to address that the relief 7 Coleman sought graduating with his class is not necessary to 8 prevent the deprivation of a right protected under the IDEA. 9 any event, there was no showing that the delay that would have 10 occurred in exhausting the administrative processes, which may 11 have entailed his missing graduation on June 24 and participation 12 in certain school activities, would have affected Coleman s 13 mental or physical health; he does not even suggest as much. 14 Acceptance of Coleman s argument could lead district courts, 15 following the suspension of a disabled student after an adverse 16 manifestation determination, to bypass the IDEA s exhaustion 17 requirement altogether because any administrative remedy, while 18 the student was attending the IAES, would be insufficient to 19 correct the harm inflicted by missing out on such things as 20 normal classroom time and extracurricular activities at the 21 disabled student s regular school. 22 would undermine the IDEA s statutory mandate for exhaustion. 23 Polera, 288 F.3d at 488. 24 that the emergency situation exception is to be sparingly In Such a sweeping exception See This is why other circuits have stated 17 1 invoked. Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000) 2 (quoting Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 3 775, 779 (3d Cir. 1994)); see also Komninos, 13 F.3d at 779 4 ( [M]ere allegations by plaintiffs of irreversible harm will not 5 be enough to excuse the completion of administrative proceedings. 6 Plaintiffs must provide a sufficient preliminary showing that the 7 child will suffer serious and irreversible mental or physical 8 damage (e.g., irremediable intellectual regression) before the 9 administrative process may be circumvented. ). That Coleman was 10 a superior athlete who was on the verge of graduating does not 11 make his claim of an emergency situation more compelling. 12 Accordingly, we conclude that, because the district court 13 should have dismissed Coleman s complaint for failure to exhaust 14 his administrative remedies and erred in not doing so, it was 15 also error for the district court to award Coleman attorneys 16 fees. CONCLUSION 17 18 19 For the foregoing reasons, we reverse the district court s award of attorneys fees. 20 18 1 2 STRAUB, Circuit Judge, concurring: I agree fully with the Court s opinion. I write separately to emphasize that I do not 3 believe either Kontrick v. Ryan, 540 U.S. 443 (2004), or Eberhart v. United States, 546 U.S. 12 4 (2005) (per curiam), raises any doubt as to our well-established precedent that federal courts lack 5 subject matter jurisdiction over IDEA claims that are unexhausted and that do not meet one of 6 the limited exceptions to the statute s exhaustion requirement. 7 As the Court notes, supra at 9, we have long treated the IDEA s exhaustion requirement 8 as jurisdictional. See, e.g., Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 9 F.3d 478, 483 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 10 199 (2d Cir. 2002); Taylor v. Vermont Dep t of Educ., 313 F.3d 768, 789 (2d Cir. 2002); W.G. v. 11 Senatore, 18 F.3d 60, 64-65 (2d Cir. 1994). The vast majority of other circuits to have 12 considered the issue have done so as well. See, e.g., Ellenberg v. New Mexico Military Inst., 478 13 F.3d 1262, 1279 (10th Cir. 2007); Fliess v. Washoe County Sch. Dist., 90 Fed. Appx. 240, 242 14 (9th Cir. 2004) (unpublished decision); Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 15 1421 (11th Cir. 1998) (per curiam); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 16 1095 (1st Cir. 1989); but see Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527 (7th Cir. 17 2006). This is for good reason: as explained more fully below, the IDEA, with few exceptions, 18 does not provide prospective plaintiffs with a federal cause of action until the state review 19 process has been completed. See 20 U.S.C. §§ 1415(i)(1) & (i)(2). 20 Neither Kontrick nor Eberhart calls this considerable body of case law into question. In 21 Kontrick, the Supreme Court held that in bankruptcy proceedings, the 60-day time limit pursuant 22 to Bankruptcy Rule 4004(a) for a creditor to file a complaint objecting to the debtor s discharge 19 1 is not jurisdictional, but rather is a judicially-created claim-processing rule that is subject to 2 waiver and forfeiture. See 540 U.S. at 454-56. The Court reasoned that under the bankruptcy 3 laws, Congress provided that objections to discharges are [c]ore proceedings that are clearly 4 within the jurisdiction of the federal courts, and that no statute curtails that jurisdiction by 5 specifying a time limit for filing a complaint objecting to discharge. Id. at 453-54 (quoting 28 6 U.S.C. § 157(b)(2)(J)). Thus, Rule 4004(a) s 60-day time limit does not affect the classes of 7 cases . . . falling within a court s adjudicatory authority, i.e., subject matter jurisdiction. Id. at 8 455. 9 In Eberhart, the Supreme Court followed Kontrick in holding that the seven-day time 10 limit for a defendant to file a motion for a new trial pursuant to Federal Rule of Criminal 11 Procedure 33 was not jurisdictional. See 546 U.S. at 13. The Court explained that Rule 33, like 12 Bankruptcy Rule 4004(a), is nothing more than an emphatic time prescription[] in [a] rule[] of 13 court that regulates motion practice in an action a federal criminal prosecution that district 14 courts already possess subject matter jurisdiction to adjudicate. Id. at 18 (quoting Kontrick, 540 15 U.S. at 454). In reaching its conclusion, the Court stressed that [c]larity would be facilitated . . 16 . if courts and litigants used the label jurisdictional not for claim-processing rules, but only for 17 prescriptions delineating the classes of cases (subject matter jurisdiction) and the persons 18 (personal jurisdiction) falling within a court s adjudicatory authority. Id. at 16 (quoting 19 Kontrick, 540 U.S. at 455). 20 Kontrick and Eberhart thus counsel that where Congress has provided courts with 21 jurisdiction over the claim at issue, judicial rules cannot be relied upon to abdicate that 22 jurisdiction. See Kontrick, 540 U.S. at 452-53 ( Only Congress may determine a lower federal 20 1 court s subject-matter jurisdiction. . . . [I]t is axiomatic that [judicially-created] rules do not 2 create or withdraw federal jurisdiction. (quoting Owen Equip. & Erection Co. v. Kroger, 437 3 U.S. 365, 370 (1978)). In both cases, Congress had clearly provided jurisdiction over the 4 underlying actions an objection to discharge and a federal criminal prosecution and the time 5 limitations that affected the processing of those actions were not dictated by statute in a way that 6 could affect the existence of the underlying claims, but rather were a product of judicial 7 rulemaking. This, then, is the critical distinction between a claim-processing rule and a 8 jurisdictional bar: a claim-processing rule does not affect the existence of the underlying claim. 9 See also Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (noting 10 that an exhaustion requirement is not jurisdictional unless the failure to exhaust administrative 11 remedies is essential to the existence of the claim, or to ripeness, and therefore to the presence of 12 an Article III case or controversy ) (internal citations and quotation marks omitted). 13 We have applied this principle in the exhaustion context in several recent cases. In 14 Richardson v. Goord, 347 F.3d 431 (2d Cir. 2003) (per curiam), we held that the exhaustion 15 requirement in the Prison Litigation Reform Act ( PLRA ) is a claim-processing rule because the 16 requirement affects a prisoner s preexisting claims brought under different statutes such as 42 17 U.S.C. § 1983 and thus exhaustion is not essential to the existence of the claim. Id. at 434. 18 Similarly, in Paese v. Hartford Life & Accident Insurance Co., we found that the failure to 19 exhaust administrative remedies under the Employee Retirement Income Security Act ( ERISA ) 20 does not deprive courts of subject matter jurisdiction (despite language in prior cases in this 21 Circuit suggesting otherwise) because, inter alia, ERISA contains no statutory exhaustion 22 requirement ; rather, the requirement is purely a judge-made concept that ha[s] little or no 21 1 bearing on the existence of a claim. 449 F.3d at 443, 445. In Zhong v. United States 2 Department of Justice, 480 F.3d 104, 107 (2d Cir. 2006), we noted that the converse was true for 3 exhaustion of administrative remedies in the immigration context. We explained that the 4 immigration laws specify that courts of appeal may review only a final order of removal, 8 5 U.S.C. § 1252(d), which is a clearly jurisdictional requirement requiring that asylum cases be 6 brought to the Executive Office for Immigration Review (i.e., an IJ and the BIA) before they can 7 be considered by courts of appeal. Zhong, 480 F.3d at 107. We went on to hold that exhaustion 8 of issues in the immigration context is not a jurisdictional requirement because issue exhaustion, 9 unlike exhaustion of remedies, is merely a court-imposed rule not expressly mandated by the 10 11 immigration laws. Id. at 115-18. Applied here, these principles leave no doubt that the IDEA s exhaustion requirement is 12 jurisdictional because it directly affects the existence of a plaintiff s underlying claim. The IDEA 13 creates a series of procedural protections for disabled children as a means to ensure their access 14 to a free appropriate public education. 20 U.S.C. § 1400(c)(3); see generally Heldman v. Sobel, 15 962 F.2d 148, 150-52 (2d Cir. 1992). For disabled students such as Coleman who are removed 16 from school for disciplinary reasons, these protections include, inter alia, a right to a 17 manifestation hearing to determine whether the student s conduct was caused by or directly 18 related to his disability, 20 U.S.C. § 1415(k)(1)(E); a right to an expedited appeal of the 19 manifestation decision before an impartial hearing officer, 20 U.S.C. §§ 1415(k)(3), (k)(4)(B) & 20 (f)(1)(A); and a right to appeal that decision before a state review officer, 20 U.S.C. § 1415(g). 21 But the IDEA does not permit students or their parents to sue the moment they are dissatisfied 22 with the outcome of any of these proceedings. Rather, the IDEA grants prospective plaintiffs a 22 1 federal (or state) cause of action only at the end of the administrative process: to parties who are 2 aggrieved by the final decision of a state educational agency, or, if the agency does not 3 provide an internal avenue of appeal, by the final decision of the impartial hearing officer. See 4 20 U.S.C. §§ 1415(i)(1) & (i)(2). Thus, by the explicit terms of the statute, a party like Coleman 5 has the right to sue only after the state process has reached a final decision, just as an asylum 6 seeker must first appeal an immigration judge s adverse decision to the Board of Immigration 7 Appeals before seeking relief in federal court. Courts, of course, do not possess jurisdiction over 8 claims that Congress has specified do not yet exist. See, e.g., Bowles v. Russell, 127 S. Ct. 2360, 9 2365 (2007) ( Within constitutional bounds, Congress decides what cases the federal courts have 10 jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it 11 can also determine when, and under what conditions, federal courts can hear them. ).1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 1 The above analysis applies to exhaustion of remedies where a plaintiff s claim is brought directly under the IDEA. The IDEA contains a separate provision requiring plaintiffs who bring actions under other statutes such as the Americans with Disabilities Act but who are seeking the kinds of relief available under the IDEA, to also exhaust administrative remedies before bringing suit: 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 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], 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). This provision is much more akin to the exhaustion requirement of the PLRA, in that it requires exhaustion before bringing causes of action that exist independently; thus, exhaustion under this provision may indeed be a claim-processing rule and not jurisdictional. Cf. Richardson, 347 F.3d at 434 (noting that the PLRA lacks the sweeping and direct language that would indicate a jurisdictional bar rather than a mere codification of administrative exhaustion requirements ) (internal citation and quotation marks omitted); but see Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995) (holding that section 1415(l) of the IDEA is jurisdictional). This issue does not arise here because Coleman s only federal claims are 23 1 The Seventh Circuit the only Court of Appeals to hold that the IDEA s exhaustion 2 requirement is not jurisdictional reasoned that lack of exhaustion usually is waivable, as lack 3 of jurisdiction is not. Mosely, 434 F.3d at 533 (internal citation and quotation marks omitted). 4 For that proposition, the Seventh Circuit cites Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 5 98 F.3d 989, 991 (7th Cir. 1996), which in turn cites Weinberger v. Salfi, 422 U.S. 749, 766-67 6 (1975). Weinberger, however, supports the conclusion that the IDEA s exhaustion requirement 7 is jurisdictional. In that case, the Supreme Court held that because the Social Security Act 8 ( SSA ) grants individuals a right to a civil action only upon the final decision of the 9 Commissioner of Social Security made after a hearing to which he was a party, 42 U.S.C. § 10 405(g), the requirement that a final decision be reached is a statutorily specified jurisdictional 11 prerequisite. Weinberger, 422 U.S. at 766. Accordingly, the Court found that the district court 12 lacked jurisdiction over the claims of the unnamed class members in the case, who had not filed 13 applications with the Secretary and thus were not appealing from any decision [of the 14 Secretary], final or otherwise. Id. at 764. The named plaintiffs, however, had fully presented 15 their claims for benefits to their district Social Security Office and, upon denial, to the Regional 16 Office for reconsideration, and were raising purely constitutional claims that could benefit from 17 no further exhaustion. Id. at 764-65. The Supreme Court found that jurisdiction existed over 18 these claims even though the plaintiffs had not pursued all internal avenues of appeal because 19 (1) the term final decision in the SSA is not only left undefined by the Act, but its meaning is 20 left to the Secretary [of Health, Education, and Welfare] to flesh out by regulation ; and (2) the 21 Secretary did not object to the named plaintiffs failure to fully exhaust all administrative 1 2 brought exclusively under the IDEA. 24 1 avenues and in so doing determined that for the purposes of this litigation the reconsideration 2 determination is final. Id. at 766-67. Weinberger thus does not support the contention that 3 exhaustion requirements are generally waivable; rather, because of the SSA s particular 4 administrative scheme, id. at 765, complete exhaustion of social security claims is not required 5 so long as a final decision by the Secretary has been reached. Id. at 767. 6 In Mathews v. Eldridge, 424 U.S. 319, 328-30 (1976), the Supreme Court expanded on 7 Weinberger and clarified that the [SSA s] requirement that a claim for benefits shall have been 8 presented to the Secretary . . . is an essential and distinct precondition for . . . jurisdiction, 9 whereas the requirement that the administrative remedies prescribed by the Secretary be 10 exhausted is waivable, either by the Secretary, or in certain limited circumstances, by the courts. 11 See also City of New York v. Heckler, 742 F.2d 729, 734 (2d Cir. 1984) (noting that the SSA s 12 final decision requirement consist[s] of two elements (i) the jurisdictional, non-waivable 13 requirement that a claim for benefits has been presented to the Secretary and (ii) the waivable 14 requirement that the administrative remedies prescribed by the Secretary have been exhausted. ). 15 This distinction in SSA cases between presentment and exhaustion is inapplicable, 16 and indeed would be incoherent, in the IDEA context. Unlike the SSA, which does not define 17 the requisite final decision for jurisdictional purposes, see Weinberger, 422 U.S. at 766, the 18 IDEA explicitly delineates what is required before a plaintiff may bring a federal or state action: 19 he or she must be aggrieved by the findings and decision of the State educational agency, or, 20 if the state does not provide for an appeal to that agency, a plaintiff can file suit to challenge the 21 decision reached at the [i]mpartial due process hearing. 20 U.S.C. §§ 1415(i), (f), (g) & (k). 22 These provisions are unambiguous and do not leave open the possibility that the final decision 25 1 for jurisdictional purposes can mean anything other than that of the state educational agency or 2 the impartial due process hearing officer. Moreover, the administrative process in social security 3 cases occurs under a single umbrella, so it can fairly be said that an initial challenge to the 4 termination of benefits has been presented to the Secretary, and a decision to uphold a 5 termination of benefits can fairly be construed as a final decision for jurisdictional purposes. 6 Under the IDEA, on the other hand, the state is ultimately responsible for adhering to the 7 statute s myriad requirements (in order to receive federal funding), but the first stages in the 8 hearing process occur at the local level. Thus, presenting a claim, for example, to the 9 superintendent of schools, or to the local official who conducts the manifestation hearing, is not 10 the equivalent of presenting a claim to the state itself. As a result, permitting waiver of the 11 IDEA s exhaustion requirement would defeat one of its fundamental purposes: to give states the 12 opportunity to correct the errors of their localities. See Polera v. Bd. of Educ. of Newburgh 13 Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002). 14 The IDEA s exhaustion requirement is unique in one respect: it allows for some limited 15 exceptions, whereas most jurisdictional rules do not. See Bowles, 127 S. Ct. at 2366 (noting that 16 courts lack[] authority to create equitable exceptions to jurisdictional requirements ). 17 Exhaustion of IDEA claims is not required if (1) it would be futile to resort to the IDEA s due 18 process procedures; (2) an agency has adopted a policy or pursued a practice of general 19 applicability that is contrary to the law; or (3) it is improbable that adequate relief can be 20 obtained by pursuing administrative remedies. Murphy v. Arlington Cent. Sch. Dist. Bd. of 21 Educ., 297 F.3d 195, 199 (2d Cir. 2002) (citing Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 22 1987)). Such exceptions are typically recognized only when exhaustion is a judicially-created 26 1 claim-processing rule. See Zhong, 461 F.3d at 119 ( In contrast to statutory exhaustion, . . . 2 judicial exhaustion permits courts, in their discretion, to waive administrative exhaustion under 3 certain circumstances. ) (internal citation and quotation marks omitted). However, the 4 exceptions to the IDEA s exhaustion requirement derive not from judicial doctrine, but from the 5 statute s unambiguous legislative history. See Heldman, 962 F.2d at 158-59 & n.11 (explaining 6 that the three recognized exceptions to exhaustion of IDEA claims futility, a challenge to a 7 policy of general applicability, and inadequacy of relief derive directly from the legislative 8 history of the Education for All Handicapped Children Act of 1975 and the Handicapped 9 Children s Protection Act of 1986, the precursors to the IDEA). Thus, these are not judicially- 10 created exceptions that ordinarily would signify a claim-processing rule; rather, they are, 11 effectively, statutory exceptions that courts must follow to carry out the clear intent of Congress. 12 Accordingly, district courts possess jurisdiction over unexhausted claims only when one or more 13 of these exceptions applies. Any other conclusion would violate the principle that [o]nly 14 Congress may determine a lower federal court s subject matter jurisdiction. Kontrick, 540 U.S. 15 at 453. 16 I therefore agree with the Court that Coleman is not entitled to attorneys fees because he 17 failed to exhaust his administrative remedies. Indeed, he filed his lawsuit even before his 18 manifestation hearing. I think it is also clear, however, that the District Court did not possess 19 subject matter jurisdiction over Coleman s claims and thus should have dismissed his lawsuit at 20 the outset. 27

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