Council Rock School Dist v. Thomas Bolick, II , 462 F. App'x 212 ( 2012 )


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  •                                                                NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-1317
    ___________
    COUNCIL ROCK SCHOOL DISTRICT
    v.
    THOMAS BOLICK, II; THOMAS BOLICK, III,
    Appellants
    ____________________________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 09-cv-05604)
    District Judge: Honorable Petrese B. Tucker
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    February 1, 2012
    Before: CHAGARES, VANASKIE and STAPLETON, Circuit Judges
    (Opinion filed: February 7, 2012)
    _________
    OPINION
    _________
    PER CURIAM
    Pro se appellants Thomas Bolick II and Thomas Bolick III appeal the District
    Court’s orders dismissing their counterclaims and granting Council Rock School
    1
    District’s motion for judgment on the administrative record. For the reasons discussed
    below, we will affirm the District Court’s judgment.
    This case arises primarily under the Individuals with Disabilities in Education Act
    (IDEA). In January 2006, when Bolick III was in 10th grade, his father, Bolick II, asked
    the School District to consider Bolick III for special-education services. According to
    Bolick II, Bolick III’s sister was an “A” student, while Bolick III received average
    grades.
    In response to Bolick II’s request, Tammy Cook, a school psychologist, conducted
    a comprehensive psycho-educational evaluation of Bolick III. Cook determined that
    Bolick III was not entitled to special-education services.
    Bolick II was not satisfied with Cook’s assessment. Accordingly, in January
    2007, Bolick II retained Kristen Herzel, Ph.D., to perform an independent educational
    evaluation (IEE). Dr. Herzel reported that while Bolick III had above-average abilities in
    written expression, reading rate, and reading fluency, his reading comprehension was
    poor. She therefore concluded that Bolick III’s “parents may wish to pursue the
    possibility of having him classified as a student with a specific learning disability
    in . . . reading comprehension.”
    Thomas Barnes, Ph.D., a School District psychologist, reviewed Dr. Herzel’s
    report and concluded that it was insufficiently thorough and did not establish that Bolick
    III had a disability. Thus, the School District continued to maintain that Bolick III was
    2
    not entitled to special-education services.
    Bolick II then instituted an administrative action with a Special Education Hearing
    Officer. The Hearing Officer ultimately agreed with the School District that Bolick III
    did not possess a learning disability. However, the Hearing Officer concluded that the
    School District’s initial examination of Bolick III had been inadequate, and thus ordered
    the School District to reimburse Bolick II for the IEE.
    The parties subsequently initiated separate appeals: the School District challenged
    the Hearing Officer’s order as to the IEE in the District Court, while the Bolicks
    challenged the Hearing Officer’s eligibility determination in the Pennsylvania
    Commonwealth Court. See generally 
    20 U.S.C. § 1415
    (i)(2)(A) (providing for
    concurrent jurisdiction). The Bolicks filed counterclaims in the federal action, raising the
    same claims that they had raised in Commonwealth Court. The District Court dismissed
    the counterclaims pursuant to Colorado River Water Conservation District v. United
    States, 
    424 U.S. 800
     (1976), concluding that because these claims were also pending in
    state court, abstention was warranted. Soon thereafter, the Commonwealth Court
    affirmed the Hearing Officer’s denial of the Bolicks’ claims. The Bolicks then argued
    that the District Court should afford res judicata effect to the Commonwealth Court’s
    decision and dismiss the School District’s complaint; the District Court rejected this
    argument. Meanwhile, the District Court reversed the Hearing Officer, concluded that
    the School District’s initial examination had been adequate, and ruled that the Bolicks
    3
    were not entitled to be reimbursed for their IEE. The Bolicks then filed a timely notice of
    appeal to this Court.
    We have jurisdiction under 
    28 U.S.C. § 1291
    . We exercise plenary review over
    the District Court’s dismissal of the Bolicks’ counterclaims, Black Horse Lane Assocs.,
    L.P. v. Dow Chem. Corp., 
    228 F.3d 275
    , 283 n.7 (3d Cir. 2000), and the Court’s refusal
    to dismiss the School District’s complaint on the basis of res judicata, Jean Alexander
    Cosmetics, Inc. v. L’Oreal USA, Inc., 
    458 F.3d 244
    , 248 (3d Cir. 2006). As to the
    District Court’s conclusion that the Bolicks were not entitled to reimbursement for their
    IEE, we exercise plenary review over the District Court’s conclusions of law and review
    its findings of fact for clear error. Warren G. v. Cumberland Cnty. Sch. Dist., 
    190 F.3d 80
    , 83 (3d Cir. 1999).
    The Bolicks’ first argument is that the District Court erred in rejecting their
    contention that the School District’s claims were precluded by res judicata. More
    specifically, the Bolicks contend that because the School District could have presented its
    claims as counterclaims in the action in the Commonwealth Court, its failure to do so has
    caused it to forfeit those claims. See generally Jonathan H. v. Souderton Area Sch. Dist.,
    
    562 F.3d 527
    , 530 (3d Cir. 2009).
    We are not persuaded by this argument. Federal courts must give state-court
    judgments the same preclusive effect they would have in state court. Parsons Steel, Inc.
    v. First Ala. Bank, 
    474 U.S. 518
    , 519 (1986). Section 22 of the Restatement (Second) of
    4
    Judgments, which Pennsylvania courts have applied, see Del Turco v. Peoples Home Sav.
    Ass’n, 
    478 A.2d 456
    , 463 (Pa. Super. Ct. 1984), provides that when a defendant may
    present a claim as a counterclaim but fails to do so, the defendant is precluded from
    maintaining an action based on that claim if (1) “[t]he counterclaim is required to be
    interposed by a compulsory counterclaim statute or rule of court”; or (2) “[t]he
    relationship between the counterclaim and the plaintiff’s claim is such that successful
    prosecution of the second action would nullify the initial judgment or would impair rights
    established in the initial action.” Neither requirement is satisfied here. First, under
    Pennsylvania law, counterclaims are permissive, not compulsory, see Pa. R. Civ. P. 1148,
    and in any event, the Commonwealth Court treats challenges to decisions of Hearing
    Officers as governed by the Pennsylvania Rules of Appellate Procedure, which provide
    no mechanism for asserting counterclaims, see Big Beaver Falls Area Sch. Dist. v.
    Jackson, 
    615 A.2d 910
    , 915 (Pa. Commw. Ct. 1992). Second, the School District’s claim
    and the Bolicks’ claims are entirely independent, and a judgment in the School District’s
    favor in this action will not undermine the Commonwealth Court’s judgment.
    Accordingly, we conclude that the School District’s claims are not barred by res
    judicata.1
    The Bolicks next argue that the District Court erred in dismissing their
    counterclaims pursuant to the Colorado River doctrine. We recognize, as the Bolicks
    1
    The Bolicks occasionally frame this argument as one of mootness, but we are convinced
    that, in essence, they are relying on principles of res judicata.
    5
    emphasize, that federal courts have a “virtually unflagging obligation to exercise the
    jurisdiction given them,” and that “[a]bstention, therefore, is the exception rather than the
    rule.” Raritan Baykeeper v. NL Indus., 
    660 F.3d 686
    , 691 (3d Cir. 2011) (internal
    quotation marks, alteration omitted). Nevertheless, even if the Bolicks are correct that
    the District Court should not have abstained here, they are entitled to no relief. The
    Commonwealth Court has rendered a final judgment in which it rejected these very
    claims; as a consequence, even if the District Court should not have abstained, the claims
    are now barred by res judicata. See Moses H. Cone Mem’l Hosp. v. Mercury Constr.
    Corp., 
    460 U.S. 1
    , 11-12 (1983) (holding that abstention order would be “effectively
    unreviewable” if not appealed immediately because “[o]nce the state court decided the
    issue . . ., the federal court would be bound to honor that determination as res judicata”).
    Accordingly, for the Bolicks to have obtained review of the District Court’s order, it was
    incumbent upon them to file an immediate appeal. See Spring City Corp. v. Am. Bldgs.
    Co., 
    193 F.3d 165
    , 171 (3d Cir. 1999).
    Finally, the Bolicks claim that the District Court erred in reversing the Hearing
    Officer’s decision that they were entitled to be reimbursed for their IEE. However, their
    argument rests on a misunderstanding of the law. While they contend that “[a] parent has
    the right to an independent educational evaluation at public expense if the parent
    disagrees with an evaluation obtained by the public agency,” this statement captures just
    part of the law — in cases like this one, where there was an administrative hearing, the
    6
    School District need not reimburse the parent if it can show that its examination was
    “appropriate.” See Warren G., 
    190 F.3d at 87
    ; 
    34 C.F.R. § 300.502
    (b)(2). The District
    Court concluded that the School District’s initial examination was, in fact, appropriate,
    and the Bolicks have failed to raise an argument challenging that ruling. Therefore, the
    Bolicks are entitled to no relief on this claim. See Laborers’ Int’l Union of N. Am., AFL-
    CIO v. Foster Wheeler Corp., 
    26 F.3d 375
    , 398 (3d Cir. 1994).2
    Accordingly, we will affirm the District Court’s judgment.
    2
    To the extent that the Bolicks appeal the District Court’s denial of their motion for
    reconsideration, we will affirm the District Court. The Bolicks’ motion for
    reconsideration merely reasserts arguments that the District Court properly rejected, and
    therefore plainly lacks merit. See Harsco Corp. v. Zlotnicki, 
    779 F.2d 906
    , 909 (3d Cir.
    1985) (purpose of motion for reconsideration is to correct manifest errors of law or fact
    or to present newly discovered evidence).
    7