PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 13-1294
______
D.E., a minor, on his behalf, by his Parents; MARIA
ENGLISH*; RONALD SHEFFY
v.
CENTRAL DAUPHIN SCHOOL DISTRICT
Maria English* and D.E.,
Appellants
*Dismissed per Clerk's 03/25/2014 Order
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-06-cv-02423)
District Judge: Honorable Yvette Kane
Memorandum Opinion: March 31, 2009
District Judge: Honorable Lawrence F. Stengel
Memorandum Opinion: January 3, 2013
______
Argued on Thursday, June 12, 2014
Before: FISHER, VAN ANTWERPEN and TASHIMA,**
Circuit Judges.
(Filed: August 27, 2014)
Carolyn M. Hazard, Esq.
Joel Mallord (ARGUED)
Brian P. Savage, Esq.
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Appellant
Thomas A. Specht, Esq. (ARGUED)
Marshall, Dennehey, Warner, Coleman & Goggin
P.O. Box 3118
Scranton, PA 18505
Counsel for Appellee
**
The Honorable A. Wallace Tashima, Senior Circuit
Judge for the Ninth Circuit Court of Appeals, sitting by
designation.
2
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
D.E., now 23 years of age, was a minor diagnosed with
a learning disability and enrolled in school in the Central
Dauphin School District ("Central Dauphin"). D.E.'s parents,
Maria English and Ronald Sheffy, claimed that while D.E.
was enrolled in Central Dauphin he was deprived of a free
appropriate public education ("FAPE"), in violation of the
Individuals with Disabilities Education Act1 ("IDEA"), and
that he was discriminated against based upon his various
disabilities, in violation of the Americans with Disabilities
Act2 ("ADA") and the Rehabilitation Act of 19733 ("RA").
The District Court dismissed D.E.'s IDEA claims, and later
granted summary judgment in Central Dauphin's favor as to
the ADA and RA claims. For the reasons set forth below, we
will affirm in part and reverse in part.
I.
A.
1
20 U.S.C. § 1400, et seq.
2
42 U.S.C. § 12132.
3
29 U.S.C. § 794.
3
D.E. attended school in Central Dauphin from
kindergarten to the seventh grade.4 Prior to his entrance into
the school district, D.E. was enrolled in preschool at the
Capital Area Intermediate Unit ("CAIU"). There, D.E.'s
parents completed an early intervention referral form for
purposes of a speech/language evaluation. On that form, they
indicated that D.E. had "attentional concerns." After
undergoing several evaluations, CAIU determined that D.E.
was eligible for early intervention services and placed D.E. in
speech and language therapy.
When D.E. began his transition into Central Dauphin
in June 1995, his school file indicated that he was entering the
school district with an individualized education program
("IEP") to address his speech and language issues. In spite of
that, D.E. was not placed in any specialized courses. Three
months later, D.E.'s mother signed a form permitting the
school district to evaluate D.E. Seven months after receiving
permission, Central Dauphin conducted the evaluation. The
only test conducted at that time was for speech and language
therapy. The resulting comprehensive evaluation report
("CER") and subsequent IEP thus contained only speech and
language goals. The CER described D.E. as a pleasant,
friendly, outgoing child who got along well with other
children and appeared to have self confidence. His report
card for that school year, however, indicated that he was
having considerable difficulty academically. By the end of
4
According to D.E. and his family, Central Dauphin's
alleged statutory violations occurred throughout the entirety
of his tenure with the school. Because neither party appears
to dispute the facts found in the hearing officer's decision, the
following facts are drawn largely from that decision.
4
his kindergarten year, he had not acquired the skills necessary
to move on to the first grade and had to repeat his
kindergarten year.
Within one month of the start of D.E.'s repeat
kindergarten year, in approximately September of 1996, his
mother initiated a request for another evaluation. The CER
was completed on December 13, 1996, and identified D.E. as
having a learning disability and as in need of specially
designed instruction. That CER did not include
recommendations for learning support services or address the
"attentional concerns" raised by D.E.'s parents or any other
impairments. D.E. was then placed in a learning support
resource room where he received speech and language
therapy. His new IEP was completed on December 17, 1996
and contained learning support goals and objectives, as well
as recommendations for speech and language services. D.E.'s
parents approved of these recommendations. Despite the
changes in placement and services, D.E.'s teacher indicated at
the end of his repeat year in kindergarten that he was still not
performing academically at grade-level.
D.E. started his first-grade year at Central Dauphin in
the Fall of 1997. At that time, his IEP was modified to
recommend that he be placed in a full-time learning support
room, which his parents approved. Following that change,
however, D.E.'s behavior became more erratic. His parents,
concerned by this change in behavior, obtained both wrap-
around services and therapeutic support staff ("TSS") to
attend school with him. D.E.'s parents continued to have
concerns and, in April 1998, had D.E. evaluated by an
external medical provider, Pinnacle Health Services
("Pinnacle"). Pinnacle diagnosed D.E. as having borderline
retardation, extreme difficulties with visual and motor skills,
and bi-polar disorder. Pinnacle administered the Wechsler
5
Intelligence Scale for Children ("WISC"), which measures a
child's general cognitive abilities, and ultimately
recommended that D.E.'s cognitive performance be closely
monitored and re-evaluated by Central Dauphin within the
next year.
Central Dauphin did not reevaluate D.E. for cognitive
ability, as Pinnacle had recommended, but did administer an
additional Wechsler Independent Achievement Test
("WIAT"), which provides a comprehensive measure of a
student's basic scholastic skills. That evaluation report
included results from the WIAT scale and Pinnacle's WISC
results. During that evaluation, Central Dauphin also
determined that D.E. needed emotional support services.
D.E. entered the second grade in 1998 in a full-time
learning and emotional support program. During the school
year, D.E.'s second grade teacher expressed concern about
whether D.E.'s TSS was necessary. The TSS was later
discontinued. At some point during his second grade year,
D.E. began regressing behaviorally. As a result, D.E.'s
mother requested an additional evaluation. The re-evaluation
was completed by D.E.'s teacher, who expressed concerns
about D.E.'s academic goals and placement. D.E.'s
behavioral issues increased and he was eventually diagnosed
with depression. Central Dauphin did not provide D.E. with a
behavior support program or conduct an additional
assessment.
D.E.'s IEP was modified again in third grade to read
"seriously emotionally disturbed," a classification usually
associated with mental retardation. As a result, D.E. was
placed in a Life Skills Support program, which focused on
providing additional support geared towards children with a
diagnosis of mental retardation. He was later mistakenly
6
identified as having mental retardation. No adaptive behavior
assessment was completed. D.E. remained in the Life Skills
Support Program throughout the third and fourth grades.
When D.E.'s mother realized D.E. was identified as mentally
retarded, she filed a complaint and withdrew D.E. from the
program. In response, Central Dauphin apologized to D.E.'s
parents, found the designation error, fixed it, and advised
D.E.'s mother of the change. Later that year, D.E. was also
inaccurately found to be ineligible for other extended school
year services.
7
In 2001, D.E.'s IEP was changed to recommend that he
participate in regular education courses for his fifth-grade
year, with an emphasis on his specific learning disability.
The very next year, however, D.E.'s goals and the specially
designed instruction regarding his behavior and social issues
were dropped from the IEP without explanation. To further
compound that error, D.E. was again found ineligible for
extended school year services.
D.E.'s seventh grade IEP goal was to increase his math
skills to a fourth-grade level. However, D.E.'s seventh-grade
teacher was not trained in any research-based math
instruction and she did not maintain any records
demonstrating D.E.'s progress on the IEP goal. During that
same year, the team responsible for overseeing D.E.'s IEP
delayed the process while awaiting a new evaluation report.
That delay resulted in D.E. working under an expired IEP for
three months. The new CER, once received, failed to assess
in detail D.E.'s emotional and behavioral needs. In addition,
although the new CER identified issues with D.E.'s social
skills, the resulting IEP never addressed that area, and Central
Dauphin never conducted any follow-up in the form of
classroom observations or curriculum-based assessments.
Beginning in eighth grade, Central Dauphin convened
a meeting with D.E.'s parents where they reviewed the
previous IEP and an evaluation report. D.E. moved from
Central Dauphin shortly thereafter. Following the move,
D.E.'s parents requested a due process hearing with Central
Dauphin to determine whether D.E. had been provided a
FAPE during his time in Central Dauphin.
B.
The administrative hearing was held in January and
February of 2006 before an impartial hearing officer. At the
8
conclusion of that hearing, the hearing officer found that
Central Dauphin had violated both the IDEA and the RA
during D.E.'s time with the school district. The hearing
officer further concluded that D.E. had been denied a FAPE
for all eight years while at Central Dauphin and that Central
Dauphin knew D.E. had more needs than those answered by
speech and language therapy upon his entry into the school
district for his first year of kindergarten.
In an order dated March 23, 2006, the hearing officer
awarded D.E. compensatory education in the amount of "one
hour for each hour of each school day for each year he
attended [Central Dauphin and] . . . fifteen hours for each of
six weeks for missed summer programs for the years from
2000 to 2004." App. at 171. The award went on to note that
D.E.'s parents "may decide how the hours should be spent,"
with some limitations, and that reimbursement for the
services would be "at the rate that the parent is obligated to
pay, [and] not [at] a district determined rate." Id. Finally, the
award noted that "[s]hould the parties agree, [Central
Dauphin] may set up a fund with a set dollar amount that the
parent may draw upon for educational services and
equipment." Id. Neither party appealed the hearing officer's
order.
On December 18, 2006, D.E. and his parents brought
an action before the District Court against Central Dauphin
seeking to recover a monetary equivalent of the nearly 10,000
hours of compensatory education awarded to D.E. in the
hearing officer's March 2006 order. D.E. and his parents also
sought compensatory damages under the ADA, IDEA, and §
504 of the RA. In an order dated March 31, 2009, following
Central Dauphin's motion for judgment on the pleadings, the
District Court dismissed D.E.'s IDEA claims, citing D.E.'s
failure to exhaust administrative remedies, the fact that there
9
existed no evidence that the hearing officer's order required
enforcement, and due to the unavailability of damages. The
District Court then denied Central Dauphin's motion
regarding D.E.'s ADA and RA claims, noting that actions
brought pursuant to those statutes did not require
administrative exhaustion and that compensatory damages
were available for those claims.
Thereafter, Central Dauphin filed a motion for
summary judgment as to D.E.'s ADA and RA claims. The
District Court granted the motion on January 3, 2013 after
finding no evidence that Central Dauphin had intentionally
discriminated against D.E. D.E. now appeals the District
Court's 2009 order dismissing his IDEA claim for failure to
exhaust administrative remedies, as well as its conclusion that
no evidence existed that the hearing officer's order required
enforcement, 5 and its 2013 order granting Central Dauphin's
motion for summary judgment on his ADA and RA claims.
II.
We note, at the outset, that a question of appellate
jurisdiction potentially blocks our consideration of this
appeal. We will, therefore, pause for a moment to determine
our jurisdiction. See United States v. Ruiz, 536 U.S. 622, 628
(2002) ("It is familiar law that a federal court always has
jurisdiction to determine its own jurisdiction.").
On March 14, 2013, the Clerk's Office issued an
Amended Order addressing, among other things, D.E.'s
ability to pursue the instant appeal on his own behalf. The
Order stated:
5
D.E. has not reasserted on appeal his claim for
compensatory damages under the IDEA.
10
It is noted that Appellant
D.E. is now more than twenty-one
(21) years old. Given this, the
parties must, within seven (7)
days of the date of this Order,
advise the Court, in writing,
whether D.E. is capable of
prosecuting his own claims. . . .
In addition, if D.E. is
pursuing the appeal in his own
behalf, he must personally sign
the notice of appeal filed by his
mother, Maria English, and return
it to the Clerk's Office within
fourteen (14) days of the date of
this Order. Failure to do so will
result in dismissal of the appeal as
to D.E.
App. at 268 (citations omitted). The Court of Appeals docket
indicates that D.E.'s signed Notice of Appeal was received on
April 1, 2013, more than fifteen days later.
Central Dauphin urges this Court to dismiss D.E.'s
appeal because his signed Notice of Appeal was not received
within the 14-day timeframe designated by the Order. D.E.,
by contrast, argues that an appellant's failure to sign a notice
of appeal is curable and should not result in dismissal so long
as that failure is promptly corrected, as he argues he has done
here. He directs our attention to Becker v. Montgomery, 532
U.S. 757, 760 (2001), a Supreme Court decision cited within
the Amended Order and which he claims supports his
position. D.E. is correct.
11
It is well established "that decisions on the merits
[should] not . . . be avoided on grounds of technical violations
of procedural rules." Polonski v. Trump Taj Mahal Assocs.,
137 F.3d 139, 144 (3d Cir. 1998) (discussing Rule 3(c) of the
Federal Rules of Appellate Procedure); see also Drinkwater v.
Union Carbide Corp., 904 F.2d 853, 858 (3d Cir. 1990)
(noting that notices of appeal are to be construed liberally).
Here, D.E. failed to sign and return the notice of appeal
within fourteen days of the date of the Order. D.E.'s failure
was cured, however, upon receipt by the Clerk's Office of the
signed notice approximately four days later on April 1, 2013.
The Supreme Court has made clear that an appellant's failure
to sign a timely notice of appeal can be cured after the
deadline to file the notice, as such a failure is curable and not
a jurisdictional impediment. See Becker, 532 U.S. at 765-66.
Because the signature requirement was curable, and D.E. did
indeed cure the defect shortly after the deadline, our
jurisprudence counsels in favor of exercising appellate
jurisdiction over D.E.'s appeal. We therefore conclude that
we have jurisdiction to review the merits of the instant appeal.
6
III.
A.
6
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §
1291.
12
D.E. first challenges the District Court's grant of
summary judgment on his ADA and RA claims.7 "We review
a district court's grant of summary judgment de novo,
applying the same standard as the district court." S.H. v.
Lower Merion Sch. Dist., 729 F.3d 248, 257 (3d Cir. 2013).
Summary judgment is appropriate only where "the moving
party has established 'that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.'" Id. at 256 (quoting Fed. R. Civ. P. 56(a)). In
reviewing a motion for summary judgment, all facts should
be viewed "in the light most favorable to the non-moving
party" and "all reasonable inferences [should be drawn] in
that party's favor." Scheidemantle v. Slippery Rock Univ.
State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006).
We note, too, that in applying this standard, the non-moving
7
Central Dauphin argues that all of D.E.'s arguments
raised on appeal regarding his ADA and RA claims were not
properly preserved before the District Court. We will reject
this argument. "For an issue to be preserved for appeal, a
party must unequivocally put its position before the trial court
at a point and in a manner that permits the court to consider
its merits." In re Ins. Brokerage Antitrust Litig., 579 F.3d
241, 262 (3d Cir. 2009) (quoting Shell Petroleum, Inc. v.
United States, 182 F.3d 212, 218 (3d Cir. 1999)) (internal
quotation mark omitted). D.E. presented his ADA and RA
arguments, including the element of intentional
discrimination, a number of times before the District Court.
See, e.g., Brief in Opposition to Defendant's Motion for
Partial Summary Judgment, D.E. v. Central Dauphin Sch.
Dist., No. 1:06-cv-02423-LFS, (M.D. Pa. Jan. 27, 2012), ECF
No. 90. His ADA and RA arguments were properly
preserved.
13
party must overcome his own hurdle in order to withstand the
motion for summary judgment. See Gans v. Mundy, 762 F.2d
338, 341 (3d Cir. 1985). The non-moving party must oppose
the motion and, in doing so, "may not rest upon the mere
allegations or denials of his pleadings." Id. "[H]is response .
. . must set forth specific facts showing that there is a genuine
issue for trial." Id. "[B]are assertions, conclusory
allegations[,] or suspicions" will not suffice. Id.
To establish claims under § 504 of the RA and the
ADA,8 a plaintiff must demonstrate that: (1) he has a
disability, or was regarded as having a disability; (2) he was
"otherwise qualified" to participate in school activities; and
(3) he was "denied the benefits of the program or was
otherwise subject to discrimination because of [his]
disability." Chambers v. Sch. Dist. of Phila. Bd. of Educ.,
587 F.3d 176, 189 (3d Cir. 2009). Where, as in the instant
case, a plaintiff seeks compensatory damages as a remedy for
violations of the RA and the ADA, it is not enough to
demonstrate only that the plaintiff has made out the prima
facie case outlined above. S.H., 729 F.3d at 261. He or she
must also demonstrate that the aforementioned discrimination
8
The same standards govern both the RA and the
ADA claims. Chambers v. Sch. Dist. of Phila. Bd. of Educ.,
587 F.3d 176, 189 (3d Cir. 2009).
14
was intentional. Id. A showing of deliberate indifference
satisfies that standard. Id. at 263.9
To satisfy the deliberate indifference standard, a
plaintiff "must present evidence that shows both: (1)
knowledge that a federally protected right is substantially
likely to be violated . . . , and (2) failure to act despite that
knowledge." Id. at 265 (citing Duvall v. Cnty. of Kitsap, 260
F.3d 1124, 1139 (9th Cir. 2001)). "Deliberate indifference
does not require a showing of personal ill will or animosity
toward the disabled person." Id. at 263 (quoting Meagley v.
City of Little Rock, 639 F.3d 384, 389 (8th Cir. 2011)
(internal quotation marks omitted)). It does, however, require
a "'deliberate choice, rather than negligence or bureaucratic
inaction.'" Id. (quoting Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 276 (2d Cir. 2009)).
D.E. argues that he has demonstrated that Central
Dauphin acted with deliberate indifference to his federally
protected right to a FAPE. He relies heavily upon the hearing
9
As an initial matter, the parties dispute whether D.E.
has established a prima facie case under the RA and the
ADA. The sole point of contention in that regard concerns
the first element, that is, whether D.E. has adequately
demonstrated that he is disabled. To the extent that D.E.
seeks only compensatory damages, the relevance of this issue
solely depends upon the outcome of our inquiry into the
question of intentional discrimination. Because we ultimately
conclude that D.E. has not demonstrated that there exists a
genuine issue of material fact regarding whether Central
Dauphin acted with deliberate indifference, we need not
belabor our analysis with an inquiry into whether D.E. has
established this element of a prima facie case under the RA
and the ADA.
15
officer's findings of fact in this regard, citing to various points
in the administrative record which, in his opinion,
demonstrate that Central Dauphin knew that it was violating
his rights. D.E. directs our attention to the following findings
made by the hearing officer: (1) Central Dauphin's placement
of D.E. into restrictive learning environments during his first
and second grade years following certain evaluations that he
considered to be lacking, as well as his subsequent
misclassifications and misdiagnoses; (2) the failure of his
IEPs to address ADHD concerns and his language-based
learning disabilities; (3) Central Dauphin's placement of D.E.
into a regular kindergarten classroom without an IEP and the
seven-month delay in his first evaluation following his
mother's request; (4) Central Dauphin's incorrect designation
of D.E. as "ineligible" for extended school year services; and
(5) Central Dauphin's failure to respond to concerns raised by
his second and fourth grade teachers regarding his classroom
placement and classification. These findings do not point to
deliberate indifference.
To begin, the findings relied upon by D.E. largely
relate to errors with the implementation of his IEP and certain
classifications assigned to him following his evaluations.
Without more, these errors fail to demonstrate that Central
Dauphin knew that it was misclassifying and/or
misdiagnosing D.E. We have stated this point before: "The
relevant inquiry is knowledge, and evidence that the School
District may have been wrong about [a student's] diagnosis is
not evidence that the School District had knowledge that it
was a wrong diagnosis. Nor does evidence that the School
District's evaluation processes were defective bear on our
analysis." S.H., 729 F.3d at 266. D.E. appears to suggest in
his brief that Central Dauphin ignored the evaluation and
recommendations conducted by Pinnacle in 1998; however,
16
in the same breath, he concedes that Central Dauphin relied
upon the Pinnacle findings in order to misclassify D.E. D.E.'s
argument in this regard fails to acknowledge the fact that,
although Central Dauphin did not conduct the exact tests
recommended by Pinnacle, it did indeed administer additional
testing – the WIAT – the results of which it incorporated with
Pinnacle's test results into the new CER. D.E.'s arguments
demonstrate, at best, possible defective evaluation processes,
which, of course, have no bearing on the question of
knowledge.
Similarly unavailing are the points raised by D.E.
regarding Central Dauphin's incorrect designation regarding
extended school year services and the delayed evaluation
during his first year in the district. Both allegations are
premised upon what Central Dauphin should have known
rather than what it actually knew. Id. at 266 n.26 ("Deliberate
indifference requires actual knowledge; allegations that one
would have or 'should have known' will not satisfy the
knowledge prong of deliberate indifference."). There is
nothing to suggest, in either instance, that Central Dauphin's
actions constituted anything more than negligence or poor
decision-making. Id. at 263 (deliberate indifference requires
a "deliberate choice, rather than negligence or bureaucratic
inaction" (quoting Loeffler, 582 F.3d at 276) (internal
quotation marks omitted)).
The strongest argument D.E. makes with respect to
knowledge are the concerns raised by a few of his teachers
regarding his performance and placement. But even that
argument is flawed, as there are several instances in the
record in which D.E.'s parents approved of his IEPs and
subsequent placements, including his placement in full-time
learning support. By contrast, the record reveals only one
instance in which D.E.'s parents disapproved of his placement
17
and classification – when Central Dauphin incorrectly
identified D.E. as mentally retarded. However, even if we
were to proceed to the second prong of the deliberate
indifference test on that point alone, we would have no basis
to conclude that Central Dauphin failed to act on this
knowledge, because Central Dauphin immediately issued an
apology to D.E.'s parents, found the designation error, fixed
it, and advised D.E.'s mother of the change.
The fact of the matter is that each year D.E. was
enrolled in the school district, Central Dauphin provided D.E.
with special education and other related services through the
completion and implementation of CERs and IEPs. While the
points raised by D.E. are most certainly unfortunate, we
cannot agree that those findings are sufficient to withstand a
motion for summary judgment on the question of deliberate
indifference, particularly as to Central Dauphin's knowledge.
For these reasons, we must affirm the District Court's grant of
18
summary judgment in favor of Central Dauphin as to D.E.'s
ADA and RA claims.10
B.
D.E.'s second argument challenges the District Court's
dismissal of his IDEA claims for failure to exhaust
administrative remedies and due to its conclusion that no
evidence existed that the hearing officer's order required
enforcement. Our review of a Rule 12(c) motion to dismiss is
10
In his brief, D.E. relied heavily on a non-
precedential opinion from our Court – Chambers v. School
District of Philadelphia Board of Education, 537 F. App'x 90
(3d Cir. 2013) – to support his position that there was a
genuine dispute of material fact regarding whether Central
Dauphin was deliberately indifferent. We reject D.E.'s
reliance on that opinion. Aside from the fact that it is non-
binding on our Court, the facts of that case differ significantly
from this one. The school district in Chambers had been
informed of the student's needs at various points and was
ordered to provide certain services, but failed to follow
through on those orders. Id. at 96. There was also evidence
in the record that the school district caused certain delays and
failures in the student's educational therapy resulting from the
school district's outright refusal to guarantee payment for the
services. Id. And finally, among other things, the school
district caused extended delays in response to requests by the
plaintiffs for hearings regarding these failures. Id. We
acknowledge that there is certainly a fine line between
mistakes and deliberate indifference, and we could even go so
far as to call this case a "close call" (as we did in Chambers),
but the facts of D.E.'s case are simply not egregious enough
to satisfy us that a genuine issue of material fact exists as to
whether Central Dauphin was deliberately indifferent.
19
plenary. Mele v. Fed. Reserve Bank of N.Y., 359 F.3d 251,
253 (3d Cir. 2004). We "view[] the facts alleged in the
pleadings and the inferences to be drawn from those facts in
the light most favorable to the plaintiff." Id. (quoting Leamer
v. Fauver, 288 F.3d 532, 535 (3d Cir. 2002) (internal
quotation marks omitted)). A Rule 12(c) motion "should not
be granted unless the moving party has established that there
is no material issue of fact to resolve, and that it is entitled to
judgment in its favor as a matter of law." Id. (internal
quotation mark omitted).
D.E. specifically argues that, at the time he filed his
lawsuit, the administrative process in Pennsylvania only
allowed appeals in circumstances where a party objected to
the hearing officer's decision. Because he prevailed at his
hearing and was ultimately awarded damages, D.E. contends
that he had no reason to file an administrative appeal. Even
still, D.E. points out that it was not until after the applicable
timeframe for an appeal had passed that he truly became an
aggrieved party as a result of Central Dauphin's refusal to
work with him and his parents regarding his award. D.E.
further argues that the District Court misconstrued his
specific request for relief. He contends that his claim merely
seeks an equitable remedy that will guarantee him the
services to which he is entitled and which neither he nor his
parents can otherwise afford; not, as the District Court
concluded, an attempt to rewrite the hearing officer's award.
D.E. notes that to base the availability of a remedy under the
IDEA on whether a student or his parents are able to front the
costs of such remedies is inconsistent with public policy
principles underlying the IDEA.
Central Dauphin argues, in contrast, that we should
affirm the District Court's dismissal of D.E.'s IDEA claims in
their entirety. According to Central Dauphin, the plain
20
language of the hearing officer's decision and order gave D.E.
and his parents the responsibility to determine and initiate
compensatory education services, and made Central Dauphin
responsible for only reimbursements of any such services
once attained. Central Dauphin asserts that D.E. was fully
aware of the foregoing and still failed to appeal the decision
despite his alleged inability to front the costs for the services.
Central Dauphin further notes that the exhaustion requirement
may be set aside only in certain circumstances and that D.E.
failed to argue that any of those exceptions apply to his case.
For that reason, Central Dauphin also contends that D.E.'s
argument has been waived for failure to preserve it before the
District Court. Finally, in further support of its position,
Central Dauphin asserts that, to the extent that D.E. seeks to
enforce or rewrite the hearing officer's decision, the federal
courts have no jurisdiction.
(1)
In order to resolve the issues presented by the parties,
we must first address the District Court's conclusion that D.E.
sought to rewrite, rather than enforce, the administrative
decision. The District Court concluded that "the plain
language of the order gives the parents the responsibility of
determining and initiating the compensatory education
services and makes [Central Dauphin] responsible for paying
for those services at face value once they have been attained."
D.E. v. Cent. Dauphin Sch. Dist., No. 1:06-CV-2423, 2009
WL 904960, at *5 (M.D. Pa. Mar. 31, 2009). Based upon that
interpretation of the hearing officer's award, the District Court
concluded that there was no evidence to support D.E.'s
contention that the order needed enforcement or that Central
Dauphin had failed to compensate them for services for which
they had previously paid. We disagree with that conclusion.
While it is true that the hearing officer's award contemplates
21
reimbursement for services paid for by D.E.'s parents, it also
states that, "[s]hould the parties agree, [Central Dauphin] may
set up a fund with a set dollar amount that the parent may
draw upon for educational services and equipment." App. at
171. The inclusion of this language within the award
demonstrates that the hearing officer clearly envisioned the
method of payment that D.E. seeks to obtain here. Of course,
the parties must agree to set up the fund, but it remains true
that the hearing officer's award did contemplate such a
remedy.11
The inclusion of the fund language in the hearing
officer's award also demonstrates that Central Dauphin and
D.E.'s parents were to work together for the benefit of D.E.
going forward. Indeed, it is more likely that the hearing
officer intended that the parties work together to create the
fund that D.E. seeks, than to give Central Dauphin an option
to not agree to set up a fund. The District Court and Central
Dauphin ignore this point, and instead base their conclusions
largely on the portion of the order that calls for
reimbursement. This interpretation, however, which places
all of the responsibility on D.E. and his parents to remedy
Central Dauphin's failures under the IDEA, is contrary to the
very purpose of the statute, which is to provide a remedy for
those denied a FAPE. See D.F. v. Collingswood Borough Bd.
11
The sentence preceding the aforementioned
language states that "[t]he hours are not to be used for college
tuition, unless the parties both agree." One could argue that
the next sentence, the sentence at issue, only applies to the
ability to set up a fund for purposes of college tuition.
However, given the nature of the award (completely favorable
to D.E.), a fund is something that was likely envisioned as a
remedy for Central Dauphin's violations.
22
of Educ., 694 F.3d 488, 497 (3d Cir. 2012) ("To comply with
the IDEA, a school district no longer responsible for
educating a child must still be held responsible for its past
transgressions. Were we to uphold the District Court's ruling,
we would create an enormous loophole in that obligation and
thereby substantially weaken the IDEA's protections."). D.E.
specifically alleges that he is being denied this remedy, as
Central Dauphin is unwilling to cooperate with him to create
the fund envisioned by the hearing officer. This allegation is
certainly reinforced by Central Dauphin's interpretation of the
award – that it was only required to reimburse for services
already attained by the student and his parents.
The gravamen of D.E.'s complaint is that he cannot
afford to front the costs of the services that Central Dauphin
was obligated to have provided him for free under the IDEA,
and which they failed to do. Our Court, as well as several
others, has recognized that the availability of IDEA remedies
should not depend upon whether a student or his parents have
the financial means to front the costs of those remedies. See,
e.g., id. at 498 (holding that a claim for compensatory
education is not rendered moot by an out-of-district move,
even if that move takes the child out of state because, to hold
otherwise, would particularly impact low-income special
needs students); Reid v. District of Columbia, 401 F.3d 516,
522-23 (D.C. Cir. 2005) ("[W]ere it impossible to obtain an
award of the [compensatory] instruction itself, children's
access to appropriate education could depend on their parents'
capacity to front its costs – a result manifestly incompatible
with IDEA's purpose of ensuring that all children with
disabilities have available to them a [FAPE]." (internal
quotation marks omitted)); Lester H. v. Gilhool, 916 F.2d
865, 873 (3d Cir. 1990) ("[W]e conclude that Congress, by
allowing the courts to fashion an appropriate remedy to cure
23
the deprivation of a child's right to a [FAPE], did not intend
to offer a remedy only to those parents able to afford an
alternative private education."); Miener v. Missouri, 800 F.2d
749, 753 (8th Cir. 1986) ("We cannot agree with the
defendants that they should escape liability for these services
simply because [plaintiff] was unable to provide them in the
first instance; . . . We are confident that Congress did not
intend the child's entitlement to a free education to turn upon
her parent's ability to 'front' its costs."). The District Court, in
adopting and applying Central Dauphin's interpretation of the
hearing officer's award, made D.E.'s access to a FAPE
dependent upon his family's ability to front the costs of his
compensatory education award.
In sum, the District Court had within its power to
formulate an appropriate remedy that would effectuate the
purpose of the IDEA and the hearing officer's award. Instead,
the District Court interpreted the hearing officer's award in a
manner inconsistent with public policy principles underlying
the IDEA, and effectively provided Central Dauphin a way to
escape liability for its past IDEA violations by refusing to
"agree" with D.E. and his family to set up a fund for purposes
of obtaining the educational services to which he was clearly
entitled. We cannot uphold such an interpretation, as doing
so would "create an enormous loophole" in a school district's
obligations under the IDEA, while "substantially weaken[ing]
the IDEA's protections" for students in D.E.'s position. D.F.,
694 F.3d at 497. We therefore conclude that the District
Court erred in finding that D.E.'s claims sought to rewrite,
rather than enforce, the administrative decision.
(2)
Since we have concluded that D.E. did indeed seek to
enforce the hearing officer's order, we must resolve a question
24
of first impression, that is, whether a party seeking to enforce
a favorable decision from an administrative due process
hearing must exhaust administrative remedies before filing
suit in a court of law.
The IDEA "is a Spending Clause statute that seeks to
ensure that all children with disabilities have available to
them a [FAPE]." Schaffer v. Weast, 546 U.S. 49, 51 (2005)
(internal quotation mark omitted). The statute "'leaves to the
States the primary responsibility for developing and executing
educational programs for handicapped children, [but] imposes
significant requirements to be followed in the discharge of
that responsibility.'" Id. at 52 (alteration in original) (quoting
Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist. v. Rowley,
458 U.S. 176, 183 (1982)). "The core of the statute, however,
is the cooperative process that it establishes between parents
and schools." Id. at 53. The statute places significant
emphasis on a parent's involvement in the disabled child's
education, and requires the school to maintain contact with
the parents throughout the entire process. Id. If a parent is
displeased with the school's actions with respect to the FAPE
provision, the IDEA provides for certain procedural
safeguards available to children with disabilities and their
parents. See 20 U.S.C. § 1415(a).
One such procedural safeguard is the right of those
aggrieved by violations of the IDEA to a due process hearing
before an administrative official. See id. at § 1415(b); see
also S.H., 729 F.3d at 257 (noting that a child or a parent who
claims violations of the IDEA can file a complaint with a due
process hearing officer). "[A]ny party aggrieved by the
findings and decision rendered [by the administrative official]
may appeal such findings and decision to the State
educational agency." 20 U.S.C. § 1415(g)(1). At the final
stage of the aforementioned enforcement procedure, the
25
IDEA permits any aggrieved party to bring a civil action in
state or federal court. Jeremy H. v. Mount Lebanon Sch.
Dist., 95 F.3d 272, 275 (3d Cir. 1996); see also 20 U.S.C. §
1415(i)(2). There, the court will "review[] the records of the
administrative proceedings, hear[] additional evidence at the
request of [either party], and grant[] . . . relief as may be
appropriate." Komninos v. Upper Saddle River Bd. of Educ.,
13 F.3d 775, 778 (3d Cir. 1994); see also 20 U.S.C. §
1415(i)(2)(C).
As noted above, the IDEA grants subject matter
jurisdiction to the federal district courts. See Komninos, 13
F.3d at 778. The language of the IDEA makes clear,
however, "that Congress intended plaintiffs to complete the
administrative process before resorting to federal court." Id.
This includes the process detailed above, participation in a
due process hearing and, where appropriate, an appeal to the
state educational agency. 20 U.S.C. § 1415(g)(1). The
Supreme Court has noted as much regarding administrative
exhaustion under the IDEA:
[A]llowing an equal protection
claim without requiring
exhaustion under the predecessor
statute, would not only "render
superfluous most of the detailed
procedural protections outlined in
the statute, but, more important, it
would also run counter to
Congress' view that the needs of
handicapped children are best
accommodated by having the
parents and the local education
agency work together to formulate
26
an individualized plan for each
handicapped child's education."
Komninos, 13 F.3d at 778 (quoting Smith v. Robinson, 468
U.S. 992, 1011-12 (1984)). It follows, then, that in order to
give effect to these important purposes, courts must enforce
the rules of exhaustion. It bears noting, however, that there
are four exceptions where exhaustion would be unnecessary.
Those recognized by this Court include situations where: (1)
exhaustion would be futile or inadequate; (2) the issue
presented is purely a legal question; (3) the administrative
agency cannot grant relief; and (4) exhaustion would cause
severe or irreparable harm. Id. Absent the existence of any
of those exceptions, failure to exhaust will deprive a federal
court of subject matter jurisdiction.
Here, neither party disputes that D.E. failed to appeal
the hearing officer's findings and decision. However, D.E.
contends that there was no need to appeal since he won at his
due process hearing in all regards. According to D.E., once a
party receives a completely favorable administrative decision,
there is nothing left to appeal administratively. We agree.
Two cases from the Fourth and Ninth Circuit Courts of
Appeals provide support for this conclusion. See Porter v.
Bd. of Trs. of Manhattan Beach Unified Sch. Dist., 307 F.3d
1064 (9th Cir. 2002); Robinson v. Pinderhughes, 810 F.2d
1270 (4th Cir. 1987).
In Porter, for example, parents of an autistic public-
school student brought an action against the school district
under the IDEA and § 1983, alleging failure to comply with
an administrative order of compensatory education for the
student. Id. at 1068. The district court dismissed the parents'
complaint for want of jurisdiction, ruling that the parents
27
were required to exhaust California's complaint resolution
process ("CRP"), a procedure distinct from the IDEA's due
process requirements, before filing suit in court. Id. at 1066.
The Ninth Circuit disagreed, holding that: (1) further
exhaustion of California's due process procedures enacted to
comply with § 1415 of the IDEA would be futile, and (2) the
parents were not required to exhaust California's CRP. Id. In
so holding, the Ninth Circuit reasoned that "[o]nce a due
process hearing issues an order that is not appealed by either
party, the IDEA requires that the order be treated as 'final.'"
Id. at 1071 (citing 20 U.S.C. § 1415(i)(1)(A)). The Court
concluded that the "clear congressional demarcation [in §
1415] of an end point to the due process procedures"
supported its position that "[n]o other administrative
procedures [were] required to be exhausted." Id.
While Porter is slightly distinguishable from the
instant matter in that California's IDEA due process
procedure is "one-tier," 12 the case raises an interesting point
regarding finality in the statutory language. The language
clearly states that any decision made at an impartial due
process hearing "shall be final," except where a party appeals
the decision. See 20 U.S.C. § 1415(i)(1)(A). In situations
where neither party appeals, that administrative decision
12
California's hearing system is known as a "one-tier"
system because the initial hearing is conducted by the state
education agency. When D.E. initiated his due process
hearing, Pennsylvania operated under a "two-tier" hearing
system, in which the initial hearing was conducted by the
local education agency, the decision of which either party
could appeal to the state education agency. See 20 U.S.C. §
1415. Pennsylvania has since moved to a one-tier system.
See 38 Pa. Bull. 3575.
28
becomes "final and binding under the IDEA" and, as a result,
nothing is left to be exhausted administratively. Porter, 307
F.3d at 1069. The Fourth Circuit Court of Appeals has stated
the same:
[T]he plaintiffs in our opinion
have received a final
administrative decision under the
[IDEA]. The [IDEA] provides
that "any party aggrieved by the
findings and decision" of a local
hearing officer may appeal to the
state educational agency. A
hearing decision that is not
appealed is final. Contrary to the
district court's holding, the
plaintiffs had neither the
responsibility nor the right to
appeal the favorable decision by
the local hearing officer since
they were not aggrieved by his
decision. They had exhausted all
administrative remedies available
to them under the [IDEA]. When
the city did not appeal the local
decision, it became the final
administrative decision of the
State.
Robinson, 810 F.2d at 1272 (citations omitted).
As Porter and Robinson make clear, administrative
exhaustion of a favorable decision is futile and barred by the
express language of the statute in that only "aggrieved
29
parties" may appeal. For those reasons, we now hold that a
party seeking to enforce a favorable decision from an
administrative due process hearing need not exhaust
administrative remedies before filing suit in a court of law.
As relevant to the instant case, D.E. received a
favorable decision at the administrative level, and neither
party sought an appeal thereafter, rendering the hearing
officer's decision "final and binding under the IDEA."
Porter, 307 F.3d at 1069. For D.E., the favorable decision
left him with nothing to appeal. He had, therefore, exhausted
his remedies as far as the administrative process was
concerned. It was error for the District Court to dismiss
D.E.'s IDEA claim for failure to exhaust administrative
remedies.13
(3)
The fact that D.E. was not an "aggrieved party" for
purposes of administrative exhaustion raises the question of
whether his claim can properly be pursued under the IDEA.
13
Central Dauphin argues that D.E. waived any
argument regarding administrative exhaustion because he
failed to argue that any of the exceptions to exhaustion apply
to his case before the District Court. Given our conclusion
here, that argument is meritless. Even if we were to consider
Central Dauphin's claim of waiver, D.E.'s argument, even
before the District Court, has always been that he had no
reason to appeal from the hearing officer's decision because
he won on all accounts. See Brief in Opposition at 12, D.E. v.
Central Dauphin Sch. Dist., No. 1:06-cv-02423-LFS, (M.D.
Pa. May 7, 2008), ECF No. 29 ("Contrary to the contorted
logic of the Defendants, Plaintiffs had nothing to appeal.").
This is, essentially, an argument in futility.
30
Section 1415(i)(2) provides for a right of "[a]ny party
aggrieved by the findings and decision" of the administrative
proceedings to bring a civil action in state or federal court. 20
U.S.C. § 1415(i)(2) (emphasis added). This language
necessarily implicates a jurisdictional issue for both this
Court and the District Court, as D.E. received a favorable
decision at the administrative level. We must now determine
whether an individual who seeks to enforce a favorable
administrative decision in court is an "aggrieved party" for
purposes of § 1415(i)(2).
We explicitly left that question open in Jeremy H. See
95 F.3d at 278. There, the plaintiffs' complaint sought,
among other things, to enforce elements of the state
administrative decision. Id. We acknowledged that "there
may be some question whether this aspect of the complaint
[could] properly be pursued under [the IDEA]." Id. We
ultimately found it unnecessary to resolve the question in the
context of the case, but set forth the competing arguments in a
footnote:
The argument against the
applicability of [§ 1415(i)(2)]
would be that the [plaintiffs], in
seeking judicial assistance to
enforce portions of the IDEA
administrative decision, were not
persons "aggrieved by the
findings and decision" within the
meaning of [§ 1415(i)(2)], but
rather persons aggrieved by the
failure of the local school officials
to implement the decision. The
counter-argument would be that
the [plaintiffs] were "aggrieved"
31
by the fact that the administrative
orders favorable to the Hunters
contained no enforcement
mechanisms.
Id. at 278 n.10.
Since the Jeremy H. decision, only the Court of
Appeals for the First Circuit has definitively decided the
question at issue, adopting reasoning similar to the latter
argument noted in Jeremy H. See Nieves-Marquez v. Puerto
Rico, 353 F.3d 108, 116 (1st Cir. 2003) (concluding that a
disabled student and his parents qualified as "parties
aggrieved" under the IDEA, even though they prevailed at
their administrative hearing, where the school district neither
appealed nor complied with its continuing obligations under
the administrative order). There, the First Circuit focused
largely upon Congress's intent, noting that "Congress could
not have intended to leave plaintiffs without an IDEA
statutory remedy when they succeed before the hearing
officer and the school system does not appeal the
administrative decision but simply fails to fulfill a continuing
obligation to provide services." Nieves-Marquez, 353 F.3d at
116. The Court went on to state that, "[i]t cannot be that a
court is powerless under IDEA to issue injunctive relief"
given the same facts. Id. To do so, the Court concluded,
"would open a gaping hole in IDEA's coverage" and "would
create incentives for school systems to drag out the
administrative process, not to appeal administrative orders,
not to announce their intentions to refuse to comply with
those orders, and generally not to comply." Id.
The Ninth and Tenth Circuit Courts of Appeals have
reached similar conclusions in similar contexts. See Porter,
32
307 F.3d at 1069-70 ("It is also clear that it would be futile to
bring a complaint to the [hearing officer] alleging the failure
to implement a due process hearing order . . . . Thus, we
conclude that the [plaintiffs'] complaint alleges a violation of
the IDEA for which further exhaustion . . . would be futile . . .
, allowing them to bring their claim directly to court."); Miller
v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232,
1243 (10th Cir. 2009) (adopting the conclusion in Nieves-
Marquez to conclude that a preemptive challenge on a
speculative theory of noncompliance by the school district
was inappropriate because the plaintiff could return to court
to enforce the award from the administrative proceedings).
Finally, Dudley v. Lower Merion School District, 768
F. Supp. 2d 779 (E.D. Pa. 2011), a case from the Eastern
District of Pennsylvania, also sets forth a particularly
persuasive argument in favor of jurisdiction over IDEA
claims of enforcement. There, as in the instant case, the
plaintiffs sought an order compelling the school district to
implement certain aspects of the hearing officer's order which
were favorable to them. Id. at 782. The school district
argued that the district court lacked subject matter jurisdiction
under the IDEA. Id. The district court rejected the school
district's argument, concluding that the plaintiffs were
"aggrieved" for purposes of the IDEA and could bring their
claim of enforcement to court. Id. at 783. In so holding, the
court noted that:
The IDEA is a
comprehensive remedial scheme
which is intended to provide a
judicial remedy for violations of
any right relating to the
identification, evaluation, or
educational placement of [a]
33
child, or the provision of a
[FAPE] to such child.
....
It would be anomalous
indeed to read the IDEA as
omitting a judicial remedy where
a party is successful before a
hearing officer but the School
District refuses to carry out the
decision. That party is as much
aggrieved as in the circumstances
where the administrative ruling is
adverse. In both cases, the relief
sought has not been realized.
Id. (first alteration in original) (internal quotation marks
omitted).
Both Dudley and Nieves-Marquez focus largely upon
the lack of an enforcement mechanism in the IDEA for
parties who prevail at the administrative level, but are later
faced with a noncompliant school district. We believe that
the circumstances here, especially in light of the IDEA's
purpose, warrant the same conclusion. We therefore hold that
individuals seeking to enforce a favorable decision obtained
at the administrative level are "aggrieved" for purposes of the
IDEA and may properly pursue such claims in court. The
District Court's dismissal of D.E.'s IDEA claims for failure to
exhaust administrative remedies must be reversed.
IV.
For the reasons set forth above, we will affirm the
order of the District Court as to D.E.'s ADA and RA claims,
34
but will reverse its order as to D.E.'s IDEA claim. In
considering D.E.'s IDEA claim, "we encourage the District
Court to consider any form of compensatory education
proposed" in a manner consistent with the IDEA and Third
Circuit precedent. See D.F., 694 F.3d at 498-99 (setting forth
a non-exhaustive list of potential forms of compensatory
education awards).
35