H.B. v. Byram Hills Central School District , 648 F. App'x 122 ( 2016 )

15-2579
H.B. v. Byram Hills Central Sch. Dist.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 6th day of May, two thousand sixteen.
PRESENT:
JOHN M. WALKER, JR.,
GUIDO CALABRESI,
PETER W. HALL,
Circuit Judges.
_______________________________________
H.B., INDIVIDUALLY AND O/B/O B.B., T.B.,
INDIVIDUALLY AND O/B/O B.B.,
Plaintiffs-Appellants,
v. No. 15-2579
BYRAM HILLS CENTRAL SCHOOL DISTRICT,
NEW YORK STATE DEPARTMENT OF EDUCATION,
MARYELLEN ELIA, IN HER REPRESENTATIVE ROLE AS
COMMISSIONER OF EDUCATION FOR THE NEW YORK
STATE EDUCATION DEPARTMENT,
Defendants-Appellees.*
_______________________________________
*
The Clerk of Court is respectfully directed to amend the official caption to conform to the
caption above.
For Plaintiffs-Appellants: PETER D. HOFFMAN, Law Office of Peter D.
Hoffman, PC, Katonah, NY.
For Byram Hills Central School District: ANDREA GREEN, Bond Schoeneck & King
PLLC, New York, NY.
For State Appellees: MARK H. SHAWHAN, Assistant Solicitor
General (Anisha S. Dasgupta, Deputy
Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State
of New York.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Briccetti, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellants appeal from a final judgment dismissing their action brought under the
Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We assume the
parties’ familiarity with the underlying facts and the procedural history of this case.
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.” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481
(2d Cir. 2002); J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004) (“It is well
settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before
bringing a civil action in federal or state court.”). The exhaustion requirement, however, “does
not apply in situations in which exhaustion would be futile because administrative procedures do
not provide adequate remedies.” Polera, 288 F.3d at 488. In Polera, we observed that “the
exhaustion requirement is predicated on Congress’s belief . . . that the agencies themselves are in
the optimal position to identify and correct their errors and to fine-tune the design of their
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programs.” Id. at 490; see also Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992) (observing
that the exhaustion requirement “prevents courts from undermining the administrative process
and permits an agency to bring its expertise to bear on a problem as well as to correct its own
mistakes”). Appellants “bear the burden of proof that exhaustion would be futile.” J.S., 386
F.3d at 112.
Appellants contend that exhaustion was futile because of the significant delays they
experienced awaiting decision from an impartial hearing officer (“IHO”). While we
acknowledge the lengthy delay, the fact remains that on August 20, 2014, Appellants and the
Byram Hills School District (‘the District”) both agreed to extend the deadline for a decision by
the IHO until October 6, 2014, so that the newly-appointed IHO would have time to review the
record. Only two days after agreeing to this deadline, however, Appellants filed this lawsuit.
While we have acknowledged that exhaustion may be futile if “administrative bodies persistently
fail to render expeditious decisions as to a child’s education placement,” Frutiger v. Hamilton
Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991), as of the date this suit was filed, the wheels had
been set in motion to resolve the delay that had occurred and to render a decision in the coming
weeks. Moreover, the mutually agreed upon October deadline strongly suggested that a decision
was imminent and that exhaustion, at least at that stage of proceedings, was not futile. Indeed,
the IHO rendered a decision on October 15, 2014, less than two weeks after the agreed deadline.
Under these circumstances, we agree with the district court that Appellants did not meet their
burden to show that exhaustion would have been futile. See J.S., 386 F.3d at 112.
In the proceedings below, Appellants sought declarations that, among other things, the
New York State Education Department and the District did not comply with governing
regulations and that they waived jurisdiction to render a decision. Appellants also requested an
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injunction precluding non-lawyer IHOs from hearing cases on whether a student has received a
free appropriate public education. They now challenge the district court’s decisions that they
lacked standing to seek declaratory and injunctive relief. We agree with the district court.
A plaintiff has the burden of establishing that he has standing to pursue his claims. See
Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (citing Raines v. Byrd, 521 U.S.
811 (1997)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (same). “To
obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show,
inter alia, ‘a sufficient likelihood that he [or she] will again be wronged in a similar way.’”
Marcavage, 689 F.3d at 103 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).
“That is, a plaintiff must demonstrate a certainly impending future injury.” Id. (internal
quotation marks omitted).
Appellants have not shown a sufficient likelihood that they will request another hearing
before an IHO and that the IHO will fail to issue a timely decision.1 Indeed, the delay here is
unlikely to recur because it was caused by a unique set of circumstances: an IHO’s medical
condition and the recusal of subsequent IHOs. It also bears noting that the IHO who caused the
initial delay is no longer certified to be an IHO. In sum, Appellants cannot demonstrate a
“certainly impending future injury.” Marcavage, 689 F.3d at 103 (internal quotation marks
omitted). Moreover, the requested declaratory relief is aimed at past conduct, a target that is
impermissible. See Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000) (declaratory relief
unavailable because “[a]ny declaration could say no more than that [the state] had violated
federal law in the past”); Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic
1
We note that Appellants have since exhausted their administrative remedies and have filed a
new civil action in district court seeking review of the administrative decision at issue. See H.B.
and T.B. v. Byram Hills Cent. School Dist., No. 15-cv-5742 (S.D.N.Y. filed July 22, 2015).
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Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited exceptions, not present here, issuance of
a declaratory judgment deeming past conduct illegal is also not permissible as it would be merely
advisory.”).
As acknowledged by counsel at oral argument, Appellants’ challenge to the denial of
their request to amend their complaint is moot. The newly filed action in district court asserts the
claims they sought to plead in their amended complaint. See H.B. and T.B., No. 15-cv-5742
(S.D.N.Y. filed July 22, 2015).
We have considered all of Appellants’ arguments and conclude that they are without
merit. We therefore AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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