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.
Docket Nos. 06-1466-cv(L), 06-1732-cv(XAP).
United States Court of Appeals, Second Circuit.
Argued: March 7, 2007. Decided: Sept. 25, 2007.
503 F.3d 198
Before: WINTER, WALKER and STRAUB, Circuit Judges.
Mark C. Rushfield, Shaw & Perelson, LLP, Highland, New York for defendants-appellants-cross-appellees.
Judge STRAUB concurs in the judgment of the Court and files a separate concurring opinion.
JOHN M. WALKER, JR., Circuit Judge:
In this case, a disabled child was subject to discipline by his school district that entitled him to several administrative remedies under the Individuals with Disabilities Education Act (“IDEA“),
Plaintiff Elzie Deshawn Coleman, a child with a disability, filed an action alleging that Newburgh Enlarged City School District, Peter Copeletti, individually and as principal of Newburgh Free Academy High School (“NFA“), and the Board of Education of the City of Newburgh School District (collectively, “Defendants“) violated his rights under the IDEA. In particular, Coleman challenged the disciplinary process that led to his suspension from NFA and moved for a preliminary injunction ordering Defendants to reinstate him immediately for the pendency of his administrative appeals. Defendants, in opposing the motion, argued that the district court lacked subject matter jurisdiction because Coleman had failed to exhaust the administrative remedies available to him under the IDEA. The district court for the
On appeal, Defendants contend, inter alia, that the district court‘s award of attorneys’ fees was improper because its determination in Coleman‘s underlying action that exhaustion would be futile was error. We agree. The district court should have dismissed Coleman‘s complaint. We therefore reverse its award of attorneys’ fees.
BACKGROUND2
Coleman attended NFA as a disabled student pursuant to an individualized education program (“IEP“) implemented under the IDEA. See
Upon prior notice, the disciplinary hearing was held on April 28, 2004 before a designated hearing officer, Edmund V. Caplicki, Jr. Caplicki found that (a) Coleman had engaged in a physical altercation with another student on school grounds; (b) a crowd grew as a result of that altercation; (c) a series of subsequent altercations broke out in the school between other students; and (d) intervention by the Newburgh Police Department was required. Based upon Caplicki‘s findings, Dr. Annette Saturnelli, the acting superintendent of schools, extended Coleman‘s suspension for five more days pending the Committee on Special Education‘s (“CSE“) hearing as to whether Coleman‘s conduct was a manifestation of his disability and the penalty phase of the disciplinary hearing before Caplicki.
On May 3, 2004, the CSE held its “manifestation hearing” and determined that Coleman‘s conduct was not attributable to his disability. From this determination, Coleman had a right to a series of administrative reviews—first to a due process hearing, see
Caplicki then heard the penalty phase of the disciplinary hearing and, on May 4, 2004, issued a written report and recommendation (the “Report and Recommendation“) that Coleman be (a) suspended for the balance of the 2003-2004 school year with the opportunity to receive home tutoring and instruction; (b) allowed to attend 2004 summer school and return to school for the 2004-2005 school year if additional credits were needed to earn his high school diploma; and (c) placed on probationary status if he attended the summer program or returned to school during the 2004-2005 school year. The same day, Dr. Saturnelli wrote a letter to Coleman in which she adopted the Report and Recommendation in full and ordered that Coleman be suspended from school for the remainder of the 2003-2004 school year and receive his IEP in an interim alternative education setting (“IAES“).5
Coleman sued Defendants in New York State Supreme Court on April 30, 2004. His complaint sought a temporary restraining order to allow him to return to classes at NFA and participate in extracurricular activities. Defendants removed Coleman‘s action to federal court. On May 6, Coleman renewed his request for a temporary restraining order and/or preliminary injunction, and the district court heard argument.
Also on May 6, Coleman appealed Dr. Saturnelli‘s guilt and penalty decisions to the Board of Education. The Board upheld the actions of Dr. Saturnelli and rejected Coleman‘s appeal to that body in its entirety. Coleman‘s counsel reported this development to the district court on May 11.
Defendants moved to dismiss Coleman‘s complaint on the basis that the district court lacked subject matter jurisdiction because Coleman had failed to exhaust all available administrative remedies including, for instance, appealing further to an IHO and then to an SRO. The district court found that it had jurisdiction over the litigation because exhaustion would be futile under the circumstances—namely, that before Coleman could fully exhaust, he would miss graduating with his class and, incidentally, participating in extracurricular activities. The district court then granted Coleman‘s motion for a preliminary injunction and ordered that he “immediately be reinstated at NFA and that he be allowed to attend classes and to participate in extracurricular activities.” Coleman, 319 F.Supp.2d at 457. Defendants appealed to this court and sought an emergency stay. On June 3, 2004, a panel of this court denied the stay, finding that Defendants failed to demonstrate irreparable harm. Within a few weeks of that decision, on June 24, Coleman graduated from NFA. It followed that Defendants, by stipulation and agreement with Coleman,
On July 12, days after Defendants’ decision to withdraw their appeal, Coleman moved in the district court pursuant to
DISCUSSION
Defendants argue that the district court erred in awarding attorneys’ fees to Coleman because the complaint should have been dismissed for lack of subject matter jurisdiction based on a failure to exhaust administrative remedies. See, e.g., McGinty v. New York, 251 F.3d 84, 100 (2d Cir.2001) (“It ... follows that where we lack subject matter jurisdiction, we also lack jurisdiction to award attorney‘s fees.“).
I. The Jurisdictional Label
Before turning to the merits, we pause to consider whether this appeal should be characterized as one involving jurisdictional limitations.
The IDEA‘s so-called exhaustion requirement is grounded in
Recently, however, the Supreme Court has admonished lower courts to more carefully distinguish between jurisdictional rules and mandatory claims-processing rules, see Eberhart v. United States, 546 U.S. 12, 16 (2005) (per curiam) (“‘Clarity would be facilitated’ ... ‘if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court‘s adjudicatory authority.‘“) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)), the latter being subject to waiver and forfeiture, see id. at 19 (“These claim-processing rules thus assure relief to a party properly raising them, but do not compel the same result if the party forfeits them.“). After Kontrick and Eberhart, we have been equivocal in our discussion of the IDEA‘s exhaustion requirement, acknowledging our statement in Polera that the failure to “exhaust IDEA administrative remedies deprive[s][a] court of subject matter jurisdiction” but also referring to the IDEA‘s exhaustion requirements as the defendants’ “non-exhaustion defense,” in a case where we contemplated, but did not decide, whether those requirements are subject to waiver. Handberry v. Thompson, 436 F.3d 52, 60 (2d Cir.2006) (citing Polera, 288 F.3d at 488-90); see also Paese v. Hartford Life Accident Ins. Co., 449 F.3d 435, 444 n. 2 (2d Cir.2006) (stating that we have yet to reach a clear conclusion on whether the failure to exhaust administrative remedies under the IDEA is an affirmative defense, not a ju-
But we are not forced to decide whether our precedent, which labels the IDEA‘s exhaustion requirement as a rule affecting subject matter jurisdiction rather than an “inflexible claim-processing” rule that may be waived or forfeited, remains good law after Kontrick and Eberhart because there can be no claim of waiver or forfeiture here. Defendants have consistently challenged the district court‘s exhaustion ruling throughout this litigation. We took a similar position in United States v. Moreno-Rivera, 472 F.3d 49, 50 n. 2 (2d Cir.2006) (per curiam), where we noted that Kontrick and Eberhart cast doubt on our precedent that considers the time limits of Fed. R.App. P. 4(b) as jurisdictional, but declined to revisit the question because the government had properly raised the untimely nature of defendant‘s notice of appeal in its motion to dismiss. In Zhong v. United States Dep‘t of Justice, 480 F.3d 104, 107 (2d Cir.2007), however, we observed that Eberhart provided reason “for us to treat as not jurisdictional, though mandatory (and hence waivable) the requirement of issue exhaustion” provided in
That Defendants are challenging the district court‘s exhaustion determination by way of an appeal from an award of attorneys’ fees does not impede our review of the issue. The IDEA‘s fee-shifting provision “limits judicial discretion to [ ] award attorney‘s fees to ‘any action or proceeding brought under [ ] this subsection.‘” W.G. v. Senatore, 18 F.3d 60, 64-65 (2d Cir. 1994) (quoting
II. Exhaustion
“It is well settled that the IDEA requires an aggrieved party to exhaust all
The district court found that Coleman had established that exhaustion would be futile. The district court reasoned that Coleman would not have been able to exhaust the full administrative processes available—review of the CSE‘s adverse manifestation determination by an IHO and an SRO—before the school year ended. As a result, Coleman would have missed his graduation and been unable to participate in extracurricular activities, including track and field events. The district court believed that these circumstances meant that there were no adequate administrative remedies available.
We do not agree that the administrative processes available to Coleman left him without an adequate remedy. The district court erred by focusing on the detriment Coleman would have suffered on account of being removed from NFA and placed in an IAES until he graduated. The sole question was whether he had a right, under the IDEA, to be reinstated at NFA while the allegedly erroneous manifestation determination was reviewed. He did not.
To be sure,
As a broader matter, we are not persuaded that a disabled child has a right,
Coleman argues that because he was set to graduate in a few weeks, his case presented an “emergency situation” such that exhaustion would be futile. Coleman‘s reference to the term “emergency situation” finds its origins in the IDEA‘s legislative history. The House Report to the IDEA‘s predecessor defined the parameters of the futility exception to include complaints that “an emergency situation exists (e.g., the failure to take immediate action will adversely affect a child‘s mental or physical health).” H.R.Rep. No. 296, 99th Cong., 1st Sess. 7 (1985) (emphasis added).
Coleman‘s “emergency situation” argument is unpersuasive here. In the first place, it fails to address that the relief Coleman sought—graduating with his class—is not necessary to prevent the deprivation of a right protected under the IDEA. In any event, there was no showing that the delay that would have occurred in exhausting the administrative processes, which may have entailed his missing graduation on June 24 and participation in certain school activities, would have affected Coleman‘s mental or physical health; he does not even suggest as much. Acceptance of Coleman‘s argument could lead district courts, following the suspension of a disabled student after an adverse manifestation determination, to bypass the IDEA‘s exhaustion requirement altogether because any administrative remedy, while the student was attending the IAES, would be insufficient to correct the “harm” inflicted by missing out on such things as normal classroom time and extracurricular activities at the disabled student‘s regular school. Such a sweeping exception would undermine the IDEA‘s statutory mandate for exhaustion. See Polera, 288 F.3d at 488. This is why other circuits have stated that the emergency situation exception “is to be sparingly invoked.” Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir.2000) (quoting Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 779 (3d Cir.1994)); see also Komninos, 13 F.3d at 779 (“[M]ere allegations by plaintiffs of irreversible harm will not be enough to excuse the completion of administrative proceedings. Plaintiffs must provide a sufficient preliminary showing that the child will suffer serious and irreversible mental or physical damage (e.g., irremediable intellectual regression) before the administrative process may be circumvented.“). That Coleman
Accordingly, we conclude that, because the district court should have dismissed Coleman‘s complaint for failure to exhaust his administrative remedies and erred in not doing so, it was also error for the district court to award Coleman attorneys’ fees.
CONCLUSION
For the foregoing reasons, we reverse the district court‘s award of attorneys’ fees.
STRAUB, Circuit Judge, concurring:
I agree fully with the Court‘s opinion. I write separately to emphasize that I do not believe either Kontrick v. Ryan, 540 U.S. 443 (2004), or Eberhart v. United States, 546 U.S. 12 (2005) (per curiam), raises any doubt as to our well-established precedent that federal courts lack subject matter jurisdiction over IDEA claims that are unexhausted and that do not meet one of the limited exceptions to the statute‘s exhaustion requirement.
As the Court notes, supra at 203, we have long treated the IDEA‘s exhaustion requirement as jurisdictional. See, e.g., Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir.2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 199 (2d Cir.2002); Taylor v. Vermont Dep‘t of Educ., 313 F.3d 768, 789 (2d Cir.2002); W.G. v. Senatore, 18 F.3d 60, 64-65 (2d Cir.1994). The vast majority of other circuits to have considered the issue have done so as well. See, e.g., Ellenberg v. New Mexico Military Inst., 478 F.3d 1262, 1279 (10th Cir.2007); Fliess v. Washoe County Sch. Dist., 90 Fed.Appx. 240, 242 (9th Cir.2004) (unpublished decision); Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 1421 (11th Cir.1998) (per curiam); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1095 (1st Cir.1989); but see Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527 (7th Cir.2006). This is for good reason: as explained more fully below, the IDEA, with few exceptions, does not provide prospective plaintiffs with a federal cause of action until the state review process has been completed. See
Neither Kontrick nor Eberhart calls this considerable body of case law into question. In Kontrick, the Supreme Court held that in bankruptcy proceedings, the 60-day time limit pursuant to Bankruptcy Rule 4004(a) for a creditor to file a complaint objecting to the debtor‘s discharge is not jurisdictional, but rather is a judicially-created “claim-processing rule” that is subject to waiver and forfeiture. See 540 U.S. at 454-56. The Court reasoned that under the bankruptcy laws, Congress provided that “objections to discharges” are “[c]ore proceedings” that are clearly within the jurisdiction of the federal courts, and that no statute curtails that jurisdiction by specifying a time limit for filing a complaint objecting to discharge. Id. at 453-54 (quoting
In Eberhart, the Supreme Court followed Kontrick in holding that the seven-day time limit for a defendant to file a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 was not jurisdictional. See 546 U.S. at 13. The Court explained that Rule 33, like Bankruptcy Rule 4004(a), is nothing more than an “emphatic time pre-
Kontrick and Eberhart thus counsel that where Congress has provided courts with jurisdiction over the claim at issue, judicial rules cannot be relied upon to abdicate that jurisdiction. See Kontrick, 540 U.S. at 452-53 (“Only Congress may determine a lower federal court‘s subject-matter jurisdiction.... ‘[I]t is axiomatic’ that [judicially-created] rules ‘do not create or withdraw federal jurisdiction.‘“) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978)). In both cases, Congress had clearly provided jurisdiction over the underlying actions—an objection to discharge and a federal criminal prosecution—and the time limitations that affected the processing of those actions were not dictated by statute in a way that could affect the existence of the underlying claims, but rather were a product of judicial rulemaking. This, then, is the critical distinction between a claim-processing rule and a jurisdictional bar: a claim-processing rule does not affect the existence of the underlying claim. See also Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 445 (2d Cir.2006) (noting that an exhaustion requirement is not jurisdictional “unless the failure to exhaust administrative remedies is essential to the existence of the claim, or to ripeness, and therefore to the presence of an Article III case or controversy“) (internal citations and quotation marks omitted).
We have applied this principle in the exhaustion context in several recent cases. In Richardson v. Goord, 347 F.3d 431, 434 (2d Cir.2003) (per curiam), we held that the exhaustion requirement in the Prison Litigation Reform Act (“PLRA“) is a claim-processing rule because the requirement affects a prisoner‘s preexisting claims—brought under different statutes such as
Applied here, these principles leave no doubt that the IDEA‘s exhaustion requirement is jurisdictional because it directly affects the existence of a plaintiff‘s underlying claim. The IDEA creates a series of procedural protections for disabled children as a means to ensure their “access to a free appropriate public education.”
The Seventh Circuit—the only Court of Appeals to hold that the IDEA‘s exhaus-
In Mathews v. Eldridge, 424 U.S. 319, 328-30 (1976), the Supreme Court expanded on Weinberger and clarified that “the [SSA‘s] requirement that a claim for benefits shall have been presented to the Secretary ... is an essential and distinct precondition for ... jurisdiction,” whereas the “requirement that the administrative remedies prescribed by the Secretary be exhausted” is waivable, either by the Secretary, or in certain limited circumstances, by the courts. See also City of New York v. Heckler, 742 F.2d 729, 734 (2d Cir.1984) (noting that the SSA‘s “final decision” requirement “consist[s] of two elements—(i) the ‘jurisdictional,’ non-waivable requirement that a claim for benefits has been presented to the Secretary and (ii) the ‘waivable’ requirement that the administrative remedies prescribed by the Secretary have been exhausted.“).
This distinction in SSA cases between “presentment” and “exhaustion” is inapplicable, and indeed would be incoherent, in the IDEA context. Unlike the SSA, which does not define the requisite “final decision” for jurisdictional purposes, see Weinberger, 422 U.S. at 766, the IDEA explicitly delineates what is required before a plaintiff may bring a federal or state action: he or she must be “aggrieved by the findings and decision” of
The IDEA‘s exhaustion requirement is unique in one respect: it allows for some limited exceptions, whereas most jurisdictional rules do not. See Bowles, 127 S.Ct. at 2366 (noting that courts “lack[ ] authority to create equitable exceptions to jurisdictional requirements“). Exhaustion of IDEA claims is not required “if (1) it would be futile to resort to the IDEA‘s due process procedures; (2) an agency has adopted a policy or pursued a practice of general applicability that is contrary to the law; or (3) it is improbable that adequate relief can be obtained by pursuing administrative remedies.” Murphy, 297 F.3d at 199 (citing Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir.1987)). Such exceptions are typically recognized only when exhaustion is a judicially-created claim-processing rule. See Zhong v. United States Dep‘t of Justice, 461 F.3d 101, 119 (2d Cir.2006) (“In contrast to statutory exhaustion, ... judicial exhaustion permits courts, in their discretion, to waive administrative exhaustion under certain circumstances.“) (internal citation and quotation marks omitted). However, the exceptions to the IDEA‘s exhaustion requirement derive not from judicial doctrine, but from the statute‘s unambiguous legislative history. See Heldman, 962 F.2d at 158-59 & n. 11 (explaining that the three recognized exceptions to exhaustion of IDEA claims—futility, a challenge to a policy of general applicability, and inadequacy of relief—derive directly from the legislative history of the Education for All Handicapped Children Act of 1975 and the Handicapped Children‘s Protection Act of 1986, the precursors to the IDEA). Thus, these are not judicially-created exceptions that ordinarily would signify a claim-processing rule; rather, they are, effectively, statutory exceptions that courts must follow to carry out the clear intent of Congress. Accordingly, district courts possess jurisdiction over unexhausted claims only when one or more of these exceptions applies. Any other conclusion would violate the principle that “[o]nly Congress may determine a lower federal court‘s subject-matter jurisdiction.” Kontrick, 540 U.S. at 453.
I therefore agree with the Court that Coleman is not entitled to attorneys’ fees because he failed to exhaust his administrative remedies. Indeed, he filed his lawsuit even before his manifestation hearing.
JOHN M. WALKER, JR.
UNITED STATES CIRCUIT JUDGE
Notes
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.