D.E. v. Central Dauphin School District

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