Anello v. Indian River School District

355 F. App'x 594
CourtCourt of Appeals for the Third Circuit
DecidedDecember 14, 2009
DocketNo. 09-1650
StatusPublished

This text of 355 F. App'x 594 (Anello v. Indian River School District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anello v. Indian River School District, 355 F. App'x 594 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

William and Maureen Anello appeal the District Court’s summary judgment in favor of the Indian River School District and Susan S. Bunting on the Anellos’ claims under the Individuals with Disabilities Education Act (IDEA). We will affirm, largely for the reasons explained in the District Court’s thorough opinion. Anello v. Indian River Sch. Dist., 2009 WL 304214, 2009 U.S. Dist. LEXIS 8896 (D.Del.2009).

I.

Because we write for the parties, who are familiar with the facts and procedural history, we recount only the aspects of the case that are essential to our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291.

A.

The Anellos moved to the Indian River School District when their daughter G.A. was to begin third grade. Prior to her arrival, G.A. had been deemed eligible by the State of New York for instruction under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, but ineligible for instruction under the IDEA. At the beginning of the 2003-2004 school year, Indian River and the Anellos determined that G.A. would remain on her § 504 plan and established classroom accommodations. In June 2004, Indian River determined that G.A had an IDEA-eligible learning disability in reading comprehension. Accordingly, the School District drafted an individualized education plan (IEP) to address G.A.’s disability and convened a meeting with the Anellos. Unsatisfied with the steps taken by Indian River, the Anellos placed G.A. in Lighthouse Christian School in August 2004.

In support of their IDEA claim, the Anellos assert Indian River: (1) failed to follow Delaware’s “child find” regulations; and (2) was on notice that G.A. needed an initial evaluation upon her arrival in the Fall of 2003.

School districts have a “child find” obligation to ensure all children with disabilities are “identified, located, and evaluated” for eligibility for special education and related services. 20 U.S.C. § 1412(a)(3)(A). Each state must establish regulations and procedures to discharge this duty. 34 C.F.R. § 300.111. In Delaware, the Department of Education created the Administrative Manual for Special Education Services (AMSES), which includes and is broader than the IDEA. Under AMSES, each school is required to create an instructional support team (1ST) to evaluate potentially eligible children. AMSES § 2.3. Significantly for purposes of this appeal, AMSES leaves the definition of 1ST up to each school district. Id. § 2.3.1.

The Anellos claim Indian River would have found G,A.’s disability earlier had it convened the required 1ST in September 2003. Indeed, the Anellos question whether Indian River ever convened an 1ST because it did not submit any documentation demonstrating the IST’s existence or listing the team members. Additionally, much of the testimony about the IST’s [597]*597actions came from a special education teacher who was, admittedly, not a member of the 1ST.

The Anellos raise the 1ST issue for the first time on appeal, which renders it waived under our precedents. See Gleason v. Norwest Mortgage, Inc., 243 F.3d 130, 142 (3d Cir.2001) (“Generally, barring exceptional circumstances, like an intervening change in the law or the lack of representation by an attorney, this Court does not review issues raised for the first time at the appellate level.”). And, “[a]l-though we have discretion to review an argument not raised in the trial Court, we ordinarily refuse to do so.” Id.

The Anellos claim the issue is not waived because the District Court opinion is the first finding that G.A. had an 1ST, so there was no need to challenge it earlier. In our view, this is insufficient to avoid the waiver rule. Appellate review is especially inappropriate here because the Anellos essentially ask us to find, on an undeveloped record, that the 1ST either was inadequate or did not exist at all. See Norfolk Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 97 (3d Cir.2008) (“A district court’s failure to consider an issue below does not necessarily preclude us from addressing it on appeal. However, it is only appropriate for us to do so ‘when the factual record is developed and the issues provide purely legal questions, upon which an appellate court exercises plenary review.’ In situations ‘where the resolution of an issue requires the exercise of discretion or fact finding ..., it is inappropriate and unwise for an appellate court to step in.’ ” (quoting Hudson United Bank v. LiTenda Mortgage Corp., 142 F.3d 151, 159 (3d Cir.1998))); see also Gass v. Virgin Islands Tele. Corp., 311 F.3d 237, 246 (3d Cir.2002) (the waiver rule “applies with added force where the timely raising of the issue would have permitted the parties to develop a factual record.” (quoting In re American Biomaterials Corp., 954 F.2d 919, 927-28 (3d Cir.1992))).

Finally, it is not entirely clear that the District Court assumed there was an 1ST; it only mentioned such a team when summarizing the Anellos’ argument. Anello, 2009 WL 304214, at *10, 2009 U.S. Dist. LEXIS 8896, at *29. The absence of any meaningful discussion of an 1ST in the District Court’s analysis is unsurprising because the legal significance of the IST’s existence was not raised below, which is the essence of waiver. Ross v. Hotel Employees & Restaurant Employees Int’l Union, 266 F.3d 236, 242-43 (3d Cir.2001) (waiver “seeks to insure that litigants have every opportunity to present their evidence in the forum designed to resolve factual disputes” (quoting Patterson v. Cuyler, 729 F.2d 925, 929 (3d Cir.1984))); see also In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 262 (3d Cir.2009) (“[T]he crucial question regarding waiver is whether defendants presented the argument with sufficient specificity to alert the district court.” (quoting Keenan v. City of Phila., 983 F.2d 459, 471 (3d Cir.1992))).

The Anellos also argue Indian River was on notice that G.A. should have been evaluated under the IDEA sooner because her § 504 plan was failing all year long, as shown by her failure on the standardized Delaware Student Testing Program (DSTP), her failing grades, and the school’s failure to modify the plan to adapt to those grades. The Anellos have already prevailed upon their claim that G.A.

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Related

Hudson United Bank v. Litenda Mortgage Corp.
142 F.3d 151 (Third Circuit, 1998)
Cristen M. Gleason v. Norwest Mortgage, Inc
243 F.3d 130 (Third Circuit, 2001)
In Re Insurance Brokerage Antitrust Litigation
579 F.3d 241 (Third Circuit, 2009)
Norfolk Southern Railway Co. v. Basell USA Inc.
512 F.3d 86 (Third Circuit, 2008)
Lauren W. Ex Rel. Jean W. v. Deflaminis
480 F.3d 259 (Third Circuit, 2007)
In re American Biomaterials Corp.
954 F.2d 919 (Third Circuit, 1992)

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Bluebook (online)
355 F. App'x 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anello-v-indian-river-school-district-ca3-2009.