UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HERBERT DOUGLASS,
Plaintiff,
v. Civil Action No. 04-947 (CKK) DISTRICT OF COLUMBIA,
Defendant.
MEMORANDUM OPINION (March 31, 2009)
Plaintiff Herbert Douglass (“Plaintiff”) brings this action against Defendant District of
Columbia (the “District”) pursuant to the Individuals with Disabilities Education Act,
(“IDEA”), 20 U.S.C. § 1400 et seq., as well as 42 U.S.C. § 1983 and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. Compl. ¶ 1. The District has moved for
dismissal of Plaintiff’s Complaint pursuant to Federal Rules of Civil Procedure (“Rules”)
12(b)(1) and 12(b)(6), arguing that the Court lacks subject matter jurisdiction over Plaintiff’s
claims under the IDEA and Section 1983 and that Plaintiff fails to state a claim under the
IDEA or the Rehabilitation Act.1 Upon a searching review of the Complaint, the relevant
statutes, regulations and case law, the Court shall GRANT-IN-PART and DENY-IN-PART
the District’s motion. Specifically, the Court GRANTS the District’s motion as to Count I of
Plaintiff’s Complaint, concluding that the Court lacks subject matter jurisdiction over
1 As explained below, although styled as a motion to dismiss pursuant to Rule 12(b), the District’s motion is in fact a motion for judgment on the pleadings under Rule 12(c) and the Court will therefore treat it as such for purposes of this Memorandum Opinion. See supra p. 5-6. Plaintiff’s claims pursuant to the IDEA and Section 1983, but DENIES the District’s motion
as to Count II of Plaintiff’s Complaint, concluding that Plaintiff has sufficiently stated a claim
under the Rehabilitation Act. In addition, although neither party has raised the issue of the
Court’s subject matter jurisdiction as to Plaintiff’s claim under the Rehabilitation Act, as set
forth in Count II of the Complaint, the Court raises the issue sua sponte and shall require the
parties to submit supplemental briefing addressing the discrete question of the Court’s subject
matter jurisdiction over Plaintiff’s remaining claim under the Rehabilitation Act, for the
reasons that follow.
I. BACKGROUND
A. Plaintiff’s Complaint
The IDEA provides that all children with disabilities will be provided a free and
appropriate public education (“FAPE”), and provides for procedural safeguards to ensure that
disabled children receive individualized education programs (“IEP”) to fulfill the Act’s goals.
As set forth in the Complaint, Plaintiff, at the time the lawsuit was filed, was “a twenty-one
year old learning disabled student.” Id. ¶ 8.2 Plaintiff was a student at Ballou Senior High
School, a school within the District of Columbia’s public school system (“DCPS”), for three
years, during which time he was enrolled in special education classes pursuant to his IEP. Id.
¶ 9. Plaintiff complains that, although his IEP specified that he was to be on the “high school
diploma track,” he was never informed by the District that “the special education classes he
2 In discussing these facts, the Court accepts as true all well-pleaded factual allegations in Plaintiff’s Complaint, as it must on a motion for judgment on the pleadings. Bowman v. District of Columbia, 562 F. Supp. 2d 30, 32 (D.D.C. 2008).
2 was attending were not eligible for Carnegie credits3 and would not count toward his
graduation credits.” Id. ¶¶ 10-11. In other words, despite the fact that his IEP required
Plaintiff to be on the “high school diploma track,” Plaintiff had failed to earn any Carnegie
units, as is necessary in order to be eligible for a high school diploma, during his three years
of attendance at Ballou Senior High School. Id. ¶ 10.
A due process hearing was subsequently held, during which “DCPS admitted that they
could not offer [him] Carnegie units at the high school level because he was enrolled in
special education classes.” Id. ¶ 12.4 “Consequently, [Plaintiff] was placed at Accotink
Academy, a full-time therapeutic private placement which offers Carnegie units for special
education high school students.” Id. “Because [Plaintiff] was eighteen when he enrolled in
Accotink Academy, he was forced to sign a three year attendance contract with Accotink
promising to remain at Accotink for a minimum of three years to complete his high school
diploma.” Id. ¶ 14. Thus, according to Plaintiff, “[a]t eighteen years of age [he] was forced
to start his high school education over from the beginning in order to receive a high school
diploma.” Id. ¶ 13.
3 As Defendant explains in its Motion to Dismiss, a “Carnegie” unit is a unit of credit for course work. See Def.’s MTD at 3, n.1. Under the District’s regulations, in order to be eligible to receive a high school diploma, a student must meet certain requirements, including, as is relevant here, satisfactory completion of a certain number of “Carnegie” units in various subject areas. See 5 D.C. Mun. Regs. tit. 5 §§ 2202, 2203.2. 4 Although Plaintiff does not describe the relevant Hearing Officer Determination (“HOD”) in his Complaint nor attach at copy of the HOD to the Complaint, Plaintiff subsequently submitted a copy of the relevant Hearing Officer Determination (“HOD”) to the Court. See Docket No. [31-3]. Review of the HOD demonstrates that the decision was filed on June 21, 2002 and issued thereafter on June 24, 2002. See id. at 5.
3 Plaintiff’s Complaint sets forth two counts.5 Count I alleges that the District’s failure
to offer Plaintiff special education classes that award Carnegie units denied him a FAPE. Id.
¶ 16. Count II alleges that the District, by providing “only regular education students [with]
the opportunity to earn Carnegie units and work towards a regular high school diploma,”
discriminated against Plaintiff on the sole basis of his disability. Id. ¶ 18. Based on these
allegations, Plaintiff asks the Court to “[d]eclare that Defendants have violated Plaintiff’s
rights under [the] IDEA.” Id. ¶ 20.6 In addition, Plaintiff seeks an award of compensatory
education and monetary damages. Id. ¶¶ 22-23.7
B. Procedural Background
Plaintiff initially filed the above-captioned lawsuit on June 9, 2004. See Compl. The
District thereafter filed an answer. See Docket No. [5]. The parties proceeded to engage in
discovery, at the conclusion of which the Court set a schedule for dispositive motions. See
10/31/05 Min. Order. Pursuant to that schedule, Plaintiff filed his motion for summary
5 Although Plaintiff’s Complaint asserts a putative class action, see generally Compl., pursuant to the Court’s directives, the District’s motion addresses only Plaintiff’s individual claims at this stage in the litigation. 6 In setting forth Plaintiff’s prayer for relief in his Complaint, Plaintiff has numbered the relevant paragraphs starting at 1, such that Plaintiff’s Complaint contains two paragraphs that are numbered “1.” For convenience, the Court refers to all paragraphs in Plaintiff’s Complaint in sequential order, referring to paragraph “1” of the prayer for relief as paragraph 19, paragraph “2” of the prayer for relief as paragraph 20, etc. 7 On behalf of the putative class, Plaintiff also asks that the Court “[r]equire D.C.P.S. to credit Carnegie units to all special education students who have completed high school classes, award units to all student[s] who wish to pursue their high school diploma, or, in the alternative, fund the placement of the student at a school which offers Carnegie units for any special education class offered.” Id. ¶ 21. As discussed above, Plaintiff’s class action claims are not at issue in the instant Memorandum Opinion. See infra 4, n. 5.
4 judgment on December 6, 2005. See Docket No. [31]. The District responded by filing the
instant motion seeking to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). See Def.’s MTD, Docket No. [32]. The District explained
that it was only after Plaintiff filed his motion for summary judgment that it became clear to
the District that this Court lacked subject matter jurisdiction over Plaintiff’s Complaint. See
Docket No. [34]. The Court, acknowledging that a defendant is permitted to raise
jurisdictional issues at any time, required the parties to brief the jurisdictional issues raised in
the District’s motion and held-in-abeyance Plaintiff’s motion for summary judgment pending
the Court’s ruling on the District’s motion. See 4/11/06 Min. Order. Accordingly, Plaintiff
filed his opposition to the District’s motion, see Pl.’s Opp’n, Docket No. [35], and the District
its reply, see Def.’s Reply, Docket No. [36]. Briefing is therefore complete and the District’s
motion is now ripe for the Court’s review and resolution.
II. LEGAL STANDARDS
As an initial matter, although the District’s motion is captioned as a motion to dismiss
pursuant to Rule 12(b), it is actually a motion for judgment on the pleadings under Rule 12(c).
Rule 12(b) states that a motion making any of the defenses enumerated therein “shall be made
before pleading if a further pleading is permitted.” FED . R. CIV . P. 12(b). Because the
District has already filed an answer to the Plaintiff’s Complaint, the District’s motion to
dismiss is not timely under Rule 12(b). Courts, however, routinely treat motions to dismiss
that are filed after a responsive pleading as a motion for judgment on the pleadings. See, e.g.,
Lenox Hill Hosp. v. Shalala, 131 F. Supp. 2d 136, 139-40 (D.D.C. 2000) (treating Rule 12(b)
5 motion to dismiss filed after answer as a motion for judgment on the pleadings under Rule
12(c)); see also Bowman v. District of Columbia, 562 F. Supp. 2d 30, 32 (D.D.C. 2008)
(same). Indeed, the “same standard applies to motions made under either” Rule 12(b) or Rule
12(c), such that “any distinction between them is merely semantic.” Bowman, 562 F. Supp.
2d at 32 (quoting 2 FED . PRAC. 3d § 12.38, 12-101); see also Sanders v. District of Columbia,
__ F. Supp. 2d __, 2009 WL 486198, (D.D.C. Feb. 27, 2009) (“The standard for review for
motions for judgment on the pleadings under Rule 12(c) of the Federal Rules is essentially the
same as that for motions to dismiss under Rule12(b)(6).”). Accordingly, the Court shall treat
the District’s motion as a motion for judgment on the pleadings pursuant to Rule 12(c). See
Fed. R. Civ. P. 12(c) (“After the pleadings are closed . . . a party may move for judgment on
the pleadings.”).
As noted above, the standards for reviewing the District’s motion are the same under
either Rule 12(b) or 12(c). Accordingly, in reviewing the District’s allegations that the Court
lacks subject matter jurisdiction over Plaintiff’s Complaint—whether under Rule 12(b) or
Rule 12(c)—the Court must accept as true all factual allegations contained in the complaint,
and the plaintiff should receive the benefit of all favorable inferences that can be drawn from
the alleged facts. See Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination
Unit, 507 U.S. 163, 164 (1993). However, a “‘plaintiff’s factual allegations in the complaint .
. . will bear closer scrutiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) motion
for failure to state a claim.” Grand Lodge of Fraternal Order of Police v. Ahscroft, 185 F.
Supp. 2d 9, 13-14 (D.D.C. 2001) (quoting 5A Charles Alan Wright & Arthur R. Miller,
6 Federal Practice and Procedure § 1350). “Although ‘the District Court may in appropriate
cases dispose of a motion to dismiss for lack of subject matter jurisdiction [] on the complaint
standing alone,’ ‘where necessary, the court may consider the complaint supplemented by
undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts
plus the court’s resolution of disputed facts.’” Coalition for Underground Expansion v.
Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d
192, 197 (D.C. Cir. 1992)); see also Koutny v. Martin, 530 F. Supp. 2d 84, 87 (D.D.C. 2007)
(in resolving a motion to dismiss pursuant to Rule 12(b)(1), a court “may also consider
‘undisputed facts evidenced in the record’”) (internal citations omitted). The plaintiff bears
the burden of establishing that the court has jurisdiction. Grand Lodge, 185 F. Supp. 2d at 13
(a court has an “affirmative obligation to ensure that it is acting within the scope of its
jurisdictional authority”); see also Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15,
19 (D.D.C. 1998).
Similarly, in evaluating the allegations that a plaintiff fails to state a claim—under
either Rule 12(b)(6) or Rule 12(c)—the court must construe the complaint in a light most
favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from
well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans
Litig., 854 F. Supp. 914, 915 (D.D.C. 1994). While the court must construe the complaint in
the plaintiff’s favor, it “need not accept inferences drawn by the plaintiff[] if such inferences
are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Moreover, the court is not bound to accept the legal
7 conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C. Cir.
1997). The court is limited to considering facts alleged in the complaint, any documents
attached to or incorporated in the complaint, matters of which the court may take judicial
notice, and matters of public record. See E.E.O.C. v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997); Marshall County Health Care Auth. v. Shalala, 988 F.2d
1221, 1226 n.6 (D.C. Cir. 1993).
III. DISCUSSION
A. Count I of Plaintiff’s Complaint Alleging Violations of the IDEA and Section 1983
As an initial matter, resolution of the District’s motion is complicated by the
Complaint’s less than artful drafting. Although Plaintiff asserts in the Complaint that this
Court has jurisdiction over his claims pursuant to three different statutory schemes—the
IDEA, Section 1983 and the Rehabilitation Act—the Complaint asserts only two counts and
does not specify the legal basis for either count. See generally Compl. The Court therefore
pauses briefly to clarify the claims asserted in Count I of Plaintiff’s Complaint. Specifically,
Count I of Plaintiff’s Complaint alleges that the District failed to provide Plaintiff with a free
and appropriate public education when it did not provide him an opportunity to receive a high
school diploma even though his IEP specified that he was on the high school diploma track.
See Compl. ¶ 16. Although Plaintiff does not identify the precise legal basis for his claim, the
Court understands that Plaintiff intends to assert a violation of the IDEA—i.e., failure to
provide Plaintiff with a free and appropriate education—and seeks compensatory education
under the IDEA for this violation as well as a declaration that the District has violated the
8 IDEA. See id. ¶¶ 16, 19, 22. In addition, although far from clear, it appears that Plaintiff also
seeks monetary damages under Section 1983 for the alleged IDEA violation set forth in Count
I. See Compl. ¶¶ 16, 23. As the relevant case law demonstrates, the IDEA itself does not
provide for monetary damages, but a plaintiff may seek monetary damages for violations of
the IDEA under Section 1983. See Walker v. District of Columbia, 969 F. Supp. 794, 796
(D.D.C. 1997). Despite this lack of clarity in Plaintiff’s Complaint, Plaintiff has confirmed in
his opposition to the District’s motion that his “Section 1983 claim arises from the failure of
the school to implement [Plaintiff’s] IEP.” Pl.’s Opp’n at 3. Accordingly, the Court
understands that Count I of Plaintiff’s Complaint asserts claims under both the IDEA and
Section 1983 based on the District’s alleged failure to provide Plaintiff with a free and
appropriate education. With that understanding, the Court proceeds to the substance of the
District’s arguments, as they relate to Count I of Plaintiff’s Complaint.
The District principally argues that this Court lacks subject matter jurisdiction over
Plaintiff’s claims under the IDEA and Section 1983.8 First, the District argues that, to the
extent the Complaint should be read as appealing the June 2002 HOD, Plaintiff’s claims are
time-barred because the Complaint was not filed within the relevant statute of limitations for
appealing hearing officer determinations. Def.’s MTD at 10-11, 13. Second, the District
argues that, to the extent the Complaint should be read as asserting a new violation of the
IDEA, Plaintiff has not exhausted his administrative remedies under the IDEA and the Court
8 The District also argues that Plaintiff has failed to state a claim under the IDEA. Def.’s MTD at 8-10. Given the Court’s determination that the Court lacks subject matter over Plaintiff’s IDEA claim, the Court need not address Defendant’s argument in the alternative.
9 therefore lacks subject matter jurisdiction over Plaintiff’s claims. Def.’s MTD at 8, 13. The
Court shall examine each argument in turn.
1. To the Extent Plaintiff Seeks to Appeal the June 2002 HOD, Plaintiff’s Claims under the IDEA and Section 1983 are Time-Barred
The IDEA establishes a variety of procedural safeguards, including, as is relevant
here, a notice and hearing process. See 20 U.S.C. § 1415. As Plaintiff acknowledges in his
Complaint, he engaged in the notice and hearing process and was issued an HOD. Compl.
¶12. Although Plaintiff’s Complaint does not provide further detail as to the HOD, Plaintiff
subsequently submitted a copy of the HOD to the Court.9 See Docket No. [31-3]. Review of
the HOD demonstrates that the decision was filed on June 21, 2002 and issued shortly
thereafter on June 24, 2002. See id. at 5. As explained in the HOD, Plaintiff and his parents
brought a complaint against DCPS alleging that the District had denied Plaintiff a FAPE
“through its failure to provide him a full-time special education program and placement and
classes in which he can earn Carnegie credits towards a diploma upon graduation.” Id. at 3.
Plaintiff requested that he be awarded : (1) an order directing the District to place and fund
Plaintiff at the Accotink Academy for the 2002-03 school year, a facility which provides
Carnegie credits for special education classes; (2) compensatory education; and (3)
9 As explained above, “[a]lthough ‘the District Court may in appropriate cases dispose of a motion to dismiss for lack of subject matter jurisdiction [] on the complaint standing alone,’ ‘where necessary, the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Coalition for Underground Expansion, 333 F.3d at 198 (quoting Herbert, 974 F.2d at 197); see also Koutny, 530 F. Supp. 2d at 87 (in resolving a motion to dismiss for lack of subject matter jurisdiction, a court “may also consider ‘undisputed facts evidenced in the record’”) (internal citations omitted).
10 reservation of the right to seek additional compensatory education if necessary. Id. The HOD
determined that DCPS had a responsibility to inform Plaintiff of the apparent conflict
between his need for special education and his placement on a “diploma track”—i.e., that his
special education classes may not award the Carnegie units required for a diploma—and to
obtain a waiver releasing the District from its obligation to provide a FAPE if Plaintiff’s
parent insisted Plaintiff remain on a “diploma track.” Id. at 4-5. The HOD ultimately held
that District’s failure to do so denied Plaintiff a FAPE. Id. The HOD therefore awarded
Plaintiff all relief requested. See id.
At the time the HOD was issued, the District of Columbia applied a 30-day limitations
period to appeals from an adverse HOD, see Carruthers v. Ludlow Taylor Elem. School, 432
F. Supp. 2d 75, 80 (D.D.C. 2006),10 and the HOD advised Plaintiff that he could appeal the
determination within 30 days of the decision. See id. at 5. Plaintiff, however, did not file the
above-captioned lawsuit until June 9, 2004. See Compl. The District therefore argues that
any appeal of the HOD is time-barred, as Plaintiff did not file the appeal until almost two
years after the HOD was issued. Def.’s MTD at 10-11. The Court agrees that, to the extent
Plaintiff is seeking to appeal the June 2002 HOD, any such claim is time-barred. See
Carruthers, 432 F. Supp. 2d at 80 (“[T]he limitations period is ‘mandatory and jurisdictional:
once the time prescribed by the rules is passed, [the court is] without the power to hear the
case.’”); see also R.P. v. District of Columbia, 474 F. Supp. 2d 152, 154 (D.D.C. 2007)
(dismissing complaint for lack of jurisdiction because plaintiff failed to file appeal within
10 The IDEA was amended, effective July 1, 2005, to provide for a 90-day statute of limitations for any appeal from an adverse HOD. See 20 U.S.C. § 1415i(2)(B).
11 relevant limitations period), aff’d 276 Fed. Appx. 1 (D.C. Cir. 2008).11
Plaintiff, however, counters that “[t]he instant case is not the appeal of an
administrative hearing, and as such, is not time barred.” Pl.’s Opp’n at 6. As an initial
matter, the Court is not persuaded that this statement is entirely accurate. Admittedly,
Plaintiff’s Complaint itself does not frame the instant lawsuit as an appeal of the June 2002
HOD. See generally Compl. Given the somewhat muddied nature of the Complaint,
however, this fact alone does not clearly demonstrate that the instant lawsuit is not appealing
the HOD. Rather, it appears that, as a substantive matter, Count I of Plaintiff’s Complaint
raises the very same issues addressed in the HOD, and that Plaintiff is simply seeking money
damages in addition to the compensatory education awarded in the HOD. Indeed, Plaintiff’s
own statements in his briefing now before the Court significantly undermines Plaintiff’s
blanket assertion that the instant Complaint does not directly appeal the HOD. For example,
in explaining the nature of his IDEA claim, Plaintiff asserts that it is based, at least in part, on
the District’s failure to “offer [Plaintiff] special education classes in which he could earn
Carnegie units in order to complete the goals on his IEP and graduate with a high school
11 Although there is some question as to whether the limitations period is subject to equitable tolling, see R.S. v. District of Columbia, 292 F. Supp. 2d 23, 27 (D.D.C. 2003); Maynard v. District of Columbia, 579 F. Supp. 2d 137, 141-42 (D.D.C. 2008), Plaintiff has not advanced any argument that the limitations period should be tolled in the instant case, see generally Pl.’s Opp’n. Accordingly, as “the District ha[s] sufficiently established that [Plaintiff’s] complaint was not timely and [Plaintiff] ha[s] advanced no arguments for equitably tolling the statute of limitations,” the Court concludes that any appeal from the HOD is time- barred. See Maynard, 579 F. Supp. 2d at 141.
12 diploma.” Pl.’s Opp’n at 5.12 In addition, in arguing that he is entitled to compensatory
damages under Section 1983 for violations of the IDEA, Plaintiff cites to the HOD’s finding
that the District violated the IDEA as evidence that Plaintiff is entitled to monetary damages.
See id. at 10. Thus, Plaintiff’s own briefing indicates that his IDEA and Section 1983 claims
are based on the same alleged violations of the IDEA at issue in the HOD. See Pl.’s Opp’n at
10. Accordingly, Plaintiff’s contention that his IDEA and Section 1983 claims are not time-
barred is not persuasive. Rather, it seems evident that Plaintiff is in fact seeking monetary
damages from the violations addressed in the HOD and is not raising new claims.
Nonetheless, the Court need not resolve this issue because even if Plaintiff’s Complaint may
be read to assert new, independent violations of the IDEA, the Court lacks subject matter
jurisdiction over Plaintiff’s IDEA and Section 1983 claims predicated on new violations of
the IDEA in light of Plaintiff’s failure to exhaust his remedies, as discussed below.
2. To the Extent Plaintiff Seeks to Assert Claims under the IDEA and Section 1983 Based on New Violations of the IDEA, Plaintiff has not Exhausted his Administrative Remedies
Even accepting Plaintiff’s assertion that the instant lawsuit is not an appeal from the
HOD, Plaintiff has not exhausted his administrative remedies and the Court therefore lacks
subject matter jurisdiction over Plaintiff’s claims under the IDEA and Section 1983. Judicial
review is generally unavailable under the IDEA unless all administrative procedures have
12 In addition, Plaintiff states that his IDEA claim is also predicated on the District’s failure to ensure that certain “transition services” were in place, as required by Plaintiff’s IEP. See Pl.’s Opp’n at 5-6. Plaintiff’s Complaint, however, fails to include any factual allegations relating to the provision of “transition services,” and the Court therefore does not consider Plaintiff’s argument as it relates to the District’s failure to provide such services.
13 been exhausted. Honig v. Doe, 484 U.S. 305, 326-27 (1988) (discussing the Education of
Handicapped Act, the immediate predecessor to the IDEA); cf. Cox v. Jenkins, 878 F.2d 414,
418 (D.C. Cir. 1989) (dismissing action under the Education of Handicapped Act, the IDEA’s
immediate predecessor, for failure to pursue all administrative avenues of redress).
Accordingly, “[a] court has no subject matter jurisdiction over an IDEA claim that has not
first been pursued through administrative channels.” Massey v. District of Columbia, 400 F.
Supp. 2d 66, 70 (D.D.C. 2005). Although exhaustion of administrative remedies under the
IDEA is not required “where exhaustion would be futile or inadequate,” Plaintiff bears the
burden of demonstrating the futility or inadequacy of the administrative process. Honig, 484
U.S. at 326-27; see also Cox, 878 F.2d at 419 (dismissing complaint where parents had not
made any showing on the record that they were not required to exhaust their administrative
remedies because exhaustion would have been futile). “The controlling point of law here is
that, absent a showing that exhaustion would be futile or inadequate, a party must pursue all
administrative avenues of redress under the [IDEA] before seeking judicial review under the
Act.” Cox, 878 F.2d at 419.
Significantly, the IDEA’s exhaustion requirement applies not only to claims brought
directly under the IDEA itself, but to any claims for relief available under the IDEA,
regardless of the statutory basis for such claims. The IDEA explicitly provides:
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution . . ., 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 [for an impartial due process hearing and
14 administrative appeal] 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). That is, although the IDEA does not “restrict or limit the rights,
procedures, and remedies available” under other applicable federal laws, a plaintiff must
nonetheless exhaust the administrative procedures set forth under the IDEA when “seeking
relief that is also available under” the IDEA, regardless of the statutory basis for such claims.
Id.; see also Polera v. Bd. of Ed. of Newburgh Enlarged City School Dist., 288 F.3d 478, 487-
88 (2d Cir. 2002). Accordingly, to the extent Plaintiff has not exhausted his administrative
remedies under the IDEA and he seeks relief available under the IDEA, this Court lacks
subject matter jurisdiction over Plaintiff’s claims regardless of the statutory basis asserted.
That is, not only is Plaintiff’s IDEA claim subject to the IDEA’s exhaustion requirement, but
Plaintiff’s claim under Section 1983is also subject to the IDEA’s exhaustion requirement to
the extent the claim “seek[] relief that is also available under” the IDEA.
Plaintiff, for his part, does not dispute that he has failed to exhaust his administrative
remedies under the IDEA. See generally Pl.’s Opp’n. Rather, Plaintiff argues only that he “is
not barred from bringing this claim due to failure to exhaust administrative remedies” because
“[i]t is not within the purview of the Hearing Officer to award damages.” Pl.’s Opp’n at 11
(internal quotation marks omitted). In other words, Plaintiff argues that he does not need to
exhaust his administrative remedies under the IDEA because he seeks monetary damages,
which relief is not available under the IDEA.
As an initial matter, neither party has directed the Court to any decision within this
Circuit addressing application of the IDEA’s exhaustion requirement to claims brought under
15 other statutes, such as Section 1983. It therefore appears to be an issue of first impression in
this Circuit. As the District notes in its motion, however, other courts have examined the issue
and have concluded that a plaintiff cannot evade the IDEA’s exhaustion requirement simply
by framing his or her action as one for monetary relief. See Def.’s MTD at 8 (citing Polera v.
Bd. of Ed., 288 F.3d 478, 488 (2d Cir. 2002)). Rather, these courts have held that “what relief
is ‘available’ does not necessarily depend on what the aggrieved party wants.” Charlie F. v.
Bd. of Ed., 98 F.3d 989, 991-92 (7th Cir. 1996). That is, “relief” as used in section 1415(l) of
the IDEA “‘mean[s] relief for the events, condition, or consequences of which the person
complains, not necessarily relief of the kind the person prefers’ or specifically seeks.” Padilla
v. School Dist. No. 1, 233 F.3d 1268, 1274 (10th Cir. 2000) (quoting Charlie F., 98 F.3d at
992); see also M.Y. v. Special Sch. Dist. No. 1, 519 F. Supp. 2d 995, 1002 (D. Minn. 2007)
(same), aff’d 544 F.3d 885 (8th Cir. 2008); Polera, 288 F.3d at 487-88 (same). Plaintiff, for
his part, has not offered any case law to the contrary supporting his argument that a plaintiff
need not exhaust his administrative remedies if he or she seeks monetary relief.13
Ultimately, the Court is persuaded that a court’s “primary concern in determining
whether a plaintiff must utilize the IDEA’s administrative procedures relates to the source and
nature of the alleged injuries for which he or she seeks a remedy, not the specific remedy
itself.” Padilla, 233 F.3d at 1274. As the Tenth Circuit succinctly put it:
[T]he dispositive question generally is whether the plaintiff has alleged injuries
13 Plaintiff’s citations to Walker v. District of Columbia, 969 F. Supp. 794 (D.D.C. 1997) (hereinafter “Walker I”) and Walker v. District of Columbia, 157 F. Supp. 2d 11, 23 (D.D.C. 2001) (hereafter “Walker II’) are inapposite, as neither case addresses the question of exhaustion under the IDEA.
16 that could be redressed to any degree by the IDEA’s administrative procedures and remedies. If so, exhaustion of those remedies is required. If not, the claim necessarily falls outside the IDEA’s scope, and exhaustion is unnecessary. Where the IDEA’s ability to remedy a particular injury is unclear, exhaustion should be required in order to give educational agencies an initial opportunity to ascertain and alleviate the alleged problem.
Id.; see also Charlie F., 98 F.3d at 992, 993. The Court therefore does not agree with
Plaintiff that he may skirt the administrative remedies provided for in the IDEA simply by
adding a claim for monetary relief. If that were true, every plaintiff who had failed to exhaust
his or her administrative remedies could simply side-step the error by adding a claim for
monetary damages to his or her complaint in federal court. Such a result is illogical and in
direct contradiction to the purpose of the IDEA’s exhaustion requirement, which “was
intended to channel disputes related to the education of disabled children into an
administrative process that could apply administrators’ expertise in the area and promptly
resolve grievances.” Polera, 288 F.3d at 487 (2d Cir. 2002); see also Hoeft v. Tucson Unified
Sch. Dist., 967 F.2d 1298, 1303 (9th Cir. 1992) (“Exhaustion of the administrative process
allows for the exercise of discretion and educational expertise by state and local agencies,
affords full exploration of technical educational issues, furthers development of a complete
factual record, and promotes judicial efficiency by giving these agencies the first opportunity
to correct shortcomings in their educational programs for disabled children.”). Thus, the
Court concludes that Plaintiff is not excused from the IDEA’s exhaustion requirement simply
because he seeks monetary damages.
Significantly, Plaintiff fails to offer any other reason to excuse his admitted failure to
exhaust administrative remedies. See generally Pl.’s Opp’n. As stated above, however,
17 Plaintiff bears the burden of demonstrating that exhaustion would be futile or inadequate. See
Honig, 484 U.S. at 326-27; see also Cox, 878 F.2d at 419. Accordingly, as Plaintiff has not
“show[n] that exhaustion would be futile or inadequate, [Plaintiff] must pursue all
administrative avenues of redress under the [IDEA] before seeking judicial review under the
Act.” Cox, 878 F.2d at 419. The Court therefore grants the District’s motion for judgment on
the pleadings as to Count I, as the Court lacks subject matter jurisdiction over Plaintiff’s
claims under the IDEA and Section 1983 based on allegations that the District violated the
IDEA.
B. Count II of Plaintiff’s Complaint Alleging a Violation of the Rehabilitation Act
As with Count I, Count II of Plaintiff’s Complaint does not specify the exact legal
basis for the allegations asserted therein. It appears, however, that Plaintiff intends to assert a
claim under Section 504 of the Rehabilitation Act, alleging that the District “discriminated
against the plaintiff solely based on his disability” by providing “only regular education
students [with] the opportunity to earn Carnegie units and work towards a regular high school
diploma.” Compl.¶ 18.
In order to state a claim under Section 504, generally a plaintiff must show that he or
she was discriminated against “solely by reason of his [or her] handicap.” 29 U.S.C. § 794.
In the context of children who receive benefits pursuant to the IDEA, the D.C. Circuit has
noted that “‘in order to show a violation of the Rehabilitation Act, something more than a
mere failure to provide the ‘free and appropriate education’ required by the [IDEA] must be
shown.’” Lunceford v. District of Columbia Bd. of Ed., 745 F.2d 1577, 1580 (D.C. Cir.1984)
18 (quoting Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982)). Accordingly, courts in
this circuit have consistently held that a plaintiff alleging a Section 504 violation based upon
denial of a free and appropriate education “must show either bad faith or gross misjudgment
on the part of the governmental defendants.” See, e.g., Robinson v. District of Columbia, 535
F. Supp. 2d 38, 41-42 (D.D.C. 2008); R.S. v. District of Columbia, 292 F. Supp. 2d 23, 28
(D.D.C. 2003); Walker I, 969 F. Supp. at 797.
The District argues that Plaintiff has failed to state a claim under Section 504 because
“nothing in the Complaint suggests an allegation of bad faith or gross misjudgment.” Def.’s
MTD at 12. As characterized by the District, Plaintiff’s Complaint alleges only that the
District failed to fully implement Plaintiff’s IEP, which the District argues does not by itself
sufficiently suggest the bad faith or gross misjudgment necessary to state a claim under
Section 504. Def.’s Reply at 6-7. The District’s argument, however, ignores that Count II of
Plaintiff’s Complaint asserts more than a mere failure to implement the Plaintiff’s IEP, as is
at issue in Count I. Rather, Count II alleges that the District discriminated against Plaintiff
solely based on his disability because it provided “only regular education students [with] the
opportunity to earn Carnegie units and work towards a regular high school diploma,” but did
not provide the same opportunity to special education students. See Compl. ¶ 18. That is,
Plaintiff claims that the District’s alleged policy of awarding Carnegie units only for non-
special education classes impeded the implementation of his IEP, which specified that he was
to be on the high school diploma track. Plaintiff therefore argues that he has “alleged facts
which call into question whether DCPS officials exercised professional judgment.” Pl.’s
19 Opp’n at 8. The Court is persuaded that, at this early stage, Plaintiff has alleged sufficient
facts to state a claim under Section 504 of the Rehabilitation Act. See, e.g., S.W. v. Warren,
528 F. Supp. 2d 282, 291-92 (S.D.N.Y. 2007) (finding that the court could “infer that
plaintiffs may be able to show bad faith or gross misjudgment” from plaintiff’s allegation that
defendants implemented policies that impede implementation of disabled students’ IEPs and
thus finding that plaintiff’s section 504 claim survived motion to dismiss); cf Alston v.
District of Columbia, 561 F. Supp. 2d 29, 39 (D.D.C. 2008) (“The plaintiff is not required to
use the magic words ‘bad faith’ in her pleading.”). Construing the Complaint in a light most
favorable to Plaintiff and drawing all reasonable inferences from the factual allegations
contained therein, as the Court must, the Court cannot say that Plaintiff has failed, as a matter
of law, to alleged sufficient facts from which gross misjudgment may be inferred.14 The
Court therefore denies the District’s motion, to the extent it seeks a judgment on the pleadings
as to Count II of Plaintiff’s Complaint for failure to state a claim under the Rehabilitation Act.
However, this is not the end of the Court’s inquiry as to Count II. Although the
District itself has not explicitly raised the question of the Court’s subject matter jurisdiction
over Plaintiff’s Rehabilitation claim in its motion (instead raising the issue only as to
Plaintiff’s IDEA and Section 1983 claims, as discussed above), the Court has an obligation to
consider the question sua sponte. NetworkIP, LLC v. FCC, 548 F.3d 116, 120 (D.C. Cir.
14 Although Plaintiff’s Section 504 claim may be based upon a showing of either bad faith or gross misjudgment on the part of the governmental defendants, the Court notes that Plaintiff has asserted only that his Complaint alleges facts sufficient to infer DCPS’ failure to exercise professional misjudgment. See Pl.’s Opp’n at 7-8. Plaintiff does not contend that he has asserted facts from which bad faith on the part of the District may be inferred. See id.
20 2008) (“‘It is axiomatic that subject matter jurisdiction may not be waived, and that courts
may raise the issue sua sponte.’”) (quoting Athens Cmty. Hosp., Inc. v. Schweiker, 686 F.2d
989, 992 (D.C. Cir. 1982)). “Indeed, we must raise it, because while arguments in favor of
subject matter jurisdiction can be waived by inattention or deliberate choice, we are
forbidden—as a court of limited jurisdiction—from acting beyond our authority, and ‘no
action of the parties can confer subject-matter jurisdiction upon a federal court.’” Id. (quoting
Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir.2003)).
As explained above, the IDEA “provides that potential plaintiffs with grievances
related to the education of disabled children generally must exhaust their administrative
remedies before filing suit in federal court, even if their claims are formulated under a statute
other than the IDEA (such as [] the Rehabilitation Act).” Polera, 288 F.3d at 481; see also
supra p.14-15. Here, Plaintiff’s claim, although asserted under the Rehabilitation Act,
clearly “relat[es] to the education of disabled children.” As such, it appears that Plaintiff is
required to have exhausted his administrative remedies under the IDEA even as to his claim
under Section 504 of the Rehabilitation Act.
Plaintiff has already admitted that he did not exhaust his administrative remedies
under the IDEA. As discussed above, Plaintiff has not sufficiently met his burden of
demonstrating futility or inadequacy as to his IDEA and Section 1983 claims. However,
given that the District did not raise the issue of the Court’s subject matter jurisdiction
specifically over Plaintiff’s Rehabilitation Act claim, the Court declines to make a
determination on the record now before it without first providing both parties an opportunity
21 to address the question of the Court’s subject matter jurisdiction as it specifically relates to
Plaintiff’s Rehabilitation Act claim. Accordingly, the Court shall require the parties to submit
supplemental briefing on the discrete question of the Court’s subject matter jurisdiction over
Plaintiff’s claim under the Rehabilitation Act. Specifically, the parties must address whether
the Court lacks subject matter jurisdiction over Plaintiff’s claim under the Rehabilitation Act
because it is time-barred or, if not time-barred, because Plaintiff failed to administratively
exhaust his remedies under the IDEA.
Plaintiff shall therefore file, by no later than April 17, 2009, supplemental briefing
addressing the discrete issue of the Court’s subject matter jurisdiction over his Rehabilitation
Act claim. The District shall file a targeted opposition addressing only the question of the
Court’s subject matter jurisdiction over Plaintiff’s remaining claim by no later than May 1,
2009, and Plaintiff may file a reply, if appropriate, by no later than May 13, 2009.15
IV. CONCLUSION
For the reasons stated above, the Court hereby GRANTS-IN-PART and DENIES-IN-
PART Defendant’s [32] motion for judgment on the pleadings. Specifically, the Court
15 Finally, the Court notes that Plaintiff’s Complaint also invokes this Court’s jurisdiction pursuant to 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The District, in its motion now before the Court, argues that “plaintiff has failed to demonstrate that any federal law confers on plaintiff the right to receive Carnegie units, and thus to establish any federal right of which he has been deprived,” therefore concluding that “plaintiff has failed to state a claim sufficient to establish jurisdiction under Section 1331.” Def.’s MTD at 5. Defendant’s argument, however, is without merit. Plaintiff’s Complaint alleges a claim under the Rehabilitation Act, and thus, to the extent this Court has subject matter jurisdiction over that claim, Plaintiff’s Complaint “aris[es] under the [] laws” of the United States and this Court has general federal question jurisdiction over Plaintiff’s Complaint.
22 GRANTS Defendant’s motion as to Count I of Plaintiff’s Complaint, concluding that the
Court lacks subject matter jurisdiction over Plaintiff’s claims pursuant to the IDEA and
Section 1983, but DENIES Defendant’s motion as to Count II of Plaintiff’s Complaint,
concluding that Plaintiff has sufficiently stated a claim under the Rehabilitation Act. The
Court, however, shall require the parties to submit supplemental briefing addressing the
Court’s subject matter jurisdiction over Plaintiff’s remaining claim under the Rehabilitation
Act. Specifically, the parties must address whether the Court lacks subject matter jurisdiction
over Plaintiff’s claim under the Rehabilitation Act because it is time-barred or, if not time-
barred, because Plaintiff failed to administratively exhaust his remedies under the IDEA.
Accordingly, Plaintiff shall file, by no later than April 17, 2009, supplemental briefing
addressing the discrete issue of the Court’s subject matter jurisdiction over Plaintiff’s
Rehabilitation Act claim. The District shall file a targeted opposition by no later than May 1,
2009, and Plaintiff may file a reply, if appropriate, by no later than May 13, 2009. An
appropriate order accompanies this memorandum opinion.
Date: March 31, 2009
/s/ COLLEEN KOLLAR-KOTELLY United States District Judge