Se.H. v. Bd of Ed of Anne Arundel Cnty
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00558-JFM. Copies to all parties and the district court/agency [999809177]. [15-1486]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1486
SE.H., individually and by and through his parents and next
friends, J.H. and S.H.; J.H.; S.H.,
Plaintiffs - Appellants,
v.
BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY PUBLIC SCHOOLS;
MAMIE PERKINS, Interim Superintendent; MARY TILLAR, Director
of Special Education; PATRICIA DEWITT, Coordinator of
Special Services; WENDY CHERMAK, Section 504 Resource Pupil
Personnel Worker,
Defendants - Appellees.
------------------------COUNCIL OF PARENT ATTORNEYS AND ADVOCATES,
Amicus Supporting Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:14-cv-00558-JFM)
Argued:
March 21, 2016
Decided:
May 2, 2016
Before AGEE and THACKER, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
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Affirmed in part and remanded by unpublished per curiam opinion.
ARGUED: Selene Almazan-Altobelli, SELENE ALMAZAN LAW, LLC,
Silver Spring, Maryland, for Appellants. Manisha Sharad Kavadi,
CARNEY, KELEHAN, BRESLER, BENNETT & SCHERR, LLP, Columbia,
Maryland, for Appellees. ON BRIEF: Mark B. Martin, LAW OFFICES
OF MARK B. MARTIN, P.A., Baltimore, Maryland, for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Se.H., individually and by and through his parents and
next friends S.H. and J.H. (collectively, “Appellants”), 1 appeals
the district court’s grant of summary judgment in favor of the
Board of Education of Anne Arundel County Public Schools and
four
employees
of
the
public
school
system
(collectively,
“AACPS” or “Appellees”).
An
Administrative
Law
Judge
(“ALJ”)
ruled
the
Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et
seq. (“IDEA”), does not entitle Se.H., who was a first grader
during
the
2013-14
school
year,
to
an
individual
trained
in
Cardiopulmonary Resuscitation (“CPR”) and the Heimlich maneuver
to accompany him throughout the school day.
upheld this decision.
The district court
Appellants contend the district court
erroneously deferred to the ALJ’s IDEA decision, and also failed
to address their claims under Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a) (“Section 504”), and Title II of the
Americans with Disabilities Act, 42 U.S.C. § 12132 (“ADA”).
We
summary
hold
judgment
that
in
the
favor
district
of
court
Appellees
1
on
properly
granted
Appellants’
IDEA
To protect the identity of the child, this opinion refers
to him and to his parents by their initials only.
See MM ex
rel. DM v. Sch. Dist. of Greenville Cty., 303 F.3d 523, 526 (4th
Cir. 2002).
3
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claims.
the
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However, the district court’s reasons for disposing of
Section
and
ADA
allow
remand to
504
claims
the
district
are
court
unclear.
to
Therefore,
clarify
the
we
reasoning
underlying its disposition of these claims.
I.
A.
The
ALJ
for
the
Maryland
Office
of
Administrative
Hearings (“OAH”) found the following facts, which are undisputed
on
appeal.
Se.H.
has
been
diagnosed
with
several
medical
conditions, including cerebral palsy; severe food allergies to
wheat/gluten, barley, peanuts, and buckwheat; allergies to dust,
pollen, mold, and smoke; asthma, including Baker’s Asthma (an
allergic disease caused mainly by inhalation of
dysphasia
(a
dysarthria
(a
swallowing
weakening
disorder)
of
and
feeding
speech-producing
flour); oral
difficulties;
muscles);
seizure
disorder; postural kyphosis (an abnormal curve of the spine);
and vision problems.
At all relevant times, Se.H. was enrolled
in Rippling Woods Elementary School (“Rippling Woods”), which is
part of the AACPS System.
At Rippling Woods, Se.H. is assigned to a one-on-one
aide (the “Aide”).
Program
physical
(“IEP”)
and
He has an extensive Individualized Education
that
provides
environmental
for
“instructional
supports,
adult
supports,
assistance
or
monitoring at all times, assistive technology, speech-language
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pathology
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services,
physical
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therapy
therapy services, and vision services.”
Woods has
implemented
the
IEP
by
services,
occupational
J.A. 58. 2
carrying
out
the
Rippling
following
measures, inter alia:
•
To decrease the possibility of exposure to
food allergens, at lunch time, Se.H. sits
at
the
end
of
a
table
with
other
classmates, and his lunch area is marked
off by a yellow stripe about two and onehalf feet from the end of the table. The
other pupils are not allowed to cross into
Se.H.’s lunch area;
•
To avoid exposing Se.H. to potential
allergens, students in his class eat
breakfast in the cafeteria rather than the
classroom;
•
The Aide assists Se.H. during lunch, and
the speech-language pathologist developed
a feeding protocol for use at mealtimes,
with the goal that Se.H. will self-feed at
a modified independent level;
•
If anaphylaxis occurs, the first line of
defense
is
an
injection
with
an
epinephrine
auto-injector
(“Epi-Pen”),
which is kept in a pack on the back of
Se.H.’s wheelchair, and all Rippling Woods
staff members have been trained to use the
Epi-Pen;
•
If Se.H. were to choke on food or a
foreign object, the emergency plan is to
call 911 and have trained staff perform
the Heimlich maneuver;
2
Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.
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•
If Se.H. goes into respiratory arrest and
becomes unconscious, the emergency plan is
to call 911 and have trained staff
administer CPR;
•
Rippling Woods has a four-page form that
guides personnel through Se.H.’s abilities
and needs while on field trips.
It
requires that Se.H. have adult supervision
and assistance on such trips, but it does
not require that the accompanying adult be
trained in CPR and the Heimlich maneuver;
•
Se.H. has a walkie-talkie attached to the
back
of
his
wheelchair
that
can
communicate
with
other
walkie-talkies
located in the nursing office, principal’s
office, and with the general and special
education teachers;
•
Rippling Woods has staff trained in both
CPR and the Heimlich maneuver, including
the school nurse (who is at the school
half-time), the Licensed Practical Nurse
health assistant (who is at the school
full-time),
the
physical
education
teacher,
and
the
school-based
speech
pathologist. Three cafeteria workers also
have training in the Heimlich maneuver.
Nursing staff can reach the cafeteria in
four seconds and Se.H.’s classroom in 18
seconds.
Se.H.’s parents are dissatisfied with the IEP, however, because
it does not require that an individual trained in Heimlich and
CPR is by Se.H.’s side at all times throughout the day. 3
3
Se.H. attended kindergarten at Rippling Woods during the
2012-13 school year, and during that year, as well as 2013-14,
he had no episodes of choking or anaphylaxis, did not require
administration of the Heimlich maneuver or CPR, and had no
episodes requiring a 911 call. Se.H. had not attended any field
trips at the time of the ALJ’s hearing.
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To prepare for the 2013-14 school year, Se.H.’s IEP
team held a meeting on March 4, 2013.
It was at this meeting
that his parents first expressed concern that a staff member
trained in CPR and the Heimlich maneuver was not with Se.H. at
all times.
The team then held nine meetings between April 17
and August 28, 2013, and his parents “continued to bring this
issue up for discussion.”
J.A. 62.
AACPS rejected this request
at every turn, explaining that they were only required to have
trained personnel in the building, which they did.
the
Anne
Arundel
County
Health
Department
offered
Even when
to
train
Se.H.’s Aide in CPR and Heimlich maneuver, Appellee Patricia
DeWitt, AACPS Coordinator of Special Services, would not allow
her to be trained because “[i]t would set a precedent and [the
Aide] already ha[d] too much on her plate.”
Id. at 73-74.
DeWitt explained at the ALJ hearing that training the Aide would
“[not be] an appropriate use of staff.”
Id. at 74.
Se.H.’s IEP for the 2013-14 school year was finalized
on August 28, 2013, but his parents were not satisfied.
They
filed a due process complaint (the “Administrative Complaint”)
with the OAH on September 10, 2013, claiming that AACPS failed
to
provide
Se.H.
with
a
free
(“FAPE”) as required by the IDEA.
7
appropriate
public
education
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B.
In
the
Administrative
Complaint,
Appellants
sought
relief not only under the IDEA, but also under Section 504 and
the ADA.
Appellants requested the following relief: “CPR and
Heimlich maneuver training for adult staff, including but not
limited to [Se.H.’s] adult assistant and any other adults who
work directly with [Se.H.] and are present throughout the day
when exposure to known allergens or potential aspiration and
asphyxiation are possible,” and also CPR and Heimlich maneuver
training
for
those
“who
work
directly
with
[Se.H.]
available to attend field trips with [Se.H.].”
On
October
23,
2013,
the
ALJ
and
are
that
the
J.A. 71.
determined
Section 504 issues (and presumably, the ADA issues) raised in
the Administrative Complaint should be dismissed for lack of
jurisdiction.
15,
2013
This determination was based on AACPS’s October
letter
possessed
the
Therefore,
the
to
the
OAH
authority
to
ALJ
only
explaining
hold
considered
that
Section
whether
it
504
AACPS
no
longer
hearings.
“failed
to
provide [Se.H.] a [FAPE] in the least restrictive environment
for the 2013-2014 school year” under the IDEA.
4
J.A. 52. 4
The ALJ also addressed whether AACPS committed an IDEA
procedural violation by failing to explain in writing why AACPS
declined to train the Aide. See 20 U.S.C. § 1415(b)(3). The ALJ
ultimately found no violation, and Appellants do not challenge
this determination on appeal.
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The ALJ held the IDEA administrative hearing on four
separate days, stretching from late October to early December
2013.
Appellants presented seven witnesses, and AACPS presented
four witnesses, three of which were also called by Appellants.
The parties filed over 50 exhibits.
The
ALJ
rendered
a
decision
on
the
IDEA
claim
on
December 18, 2013, ultimately determining that the procedures in
place
at
Rippling
Woods
satisfied
the
IDEA
standards.
Meanwhile, the parties engaged in protracted communications in
an attempt to meet for an administrative hearing pursuant to
Section 504, to no avail.
Appellants filed the instant action in the District of
Maryland on February 25, 2014.
Counts I and II challenge the
ALJ’s IDEA decision, alleging substantive and procedural IDEA
violations. 5
Counts
violations
only:
III,
IV,
V,
intentional
and
IX
allege
Section
discrimination
504
(III),
discrimination in AACPS’s policies and practices (IV), denial of
reasonable
(IX).
accommodation
(V),
and
failure
to
provide
a
FAPE
Counts VI and VII allege claims under both the ADA and
Section 504: failure of AACPS to act against certain employees
5
Pursuant to the IDEA, “[a] party aggrieved by the decision
of the state agency may bring a civil action in state or federal
court.”
E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of
Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20 U.S.C.
§ 1415(i)(2)).
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for discriminatory actions (VI), and retaliation (VII). 6
And
Count VIII alleges Appellees violated Title II of the ADA by
excluding Se.H. from programs, services, and benefits by reason
of his disabilities.
Apart from attorney’s fees and costs, Appellants seek
only the following equitable relief: an order requiring the Aide
to be trained in Heimlich and CPR, and a declaratory judgment
stating that AACPS’s Section 504 practices violate Section 504
as applied to Se.H. 7
Appellants filed a motion for partial summary judgment
on only the IDEA claims and Section 504 discrimination claims.
Appellees
counts.
filed
a
cross
motion
for
summary
judgment
on
all
The district court granted Appellees’ motion and denied
Appellants’ motion, explaining:
It is true that because of Se.H.’s physical
condition, there is a greater risk he will
need CPR or the administration of the
Heimlich
maneuver
than
other
students.
However, [AACPS] has in place reasonable
procedures to assure that if Se.H. does need
assistance, there are persons available who
6
Appellants also grounded these causes of action in 42
U.S.C. § 1983, but they do not raise any issues with respect to
§ 1983 in this appeal.
7
Appellants also seek “a declaratory judgment” stating the
ALJ’s decision contained “mistakes of law that were flawed and
were clearly erroneous.”
J.A. 26.
Because the possibility of
this type of relief is inherent in the review process set forth
in the IDEA, we decline to consider it a separate remedy.
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will be able to help him. One certainly is
sympathetic
to
Se.H.
and
his
parents.
However, reasonableness is something less
than perfection, and, as found by the [ALJ],
the measures that defendant has put in place
provide adequate protection of Se.H.
J.A. 46-47.
The district court mentioned Section 504 and the
ADA 8 only in the opening sentence of the memorandum, and in a
footnote observed, “[T]he emergency plan that defendant has in
place for Se.H. complies with applicable law.”
(emphasis
supplied).
Appellants
filed
a
J.A. 47 n.1
timely
notice
of
appeal.
II.
The IDEA Decision
We first address whether the district court erred in
granting
summary
judgment
to
Appellees
on
Appellants’
IDEA
claims.
A.
The
education
IDEA
funds
disabilities.
requires
provide
a
that
FAPE
states
to
receiving
all
federal
children
with
See E.L. ex rel. Lorsson v. Chapel Hill-Carrboro
Bd. of Educ., 773 F.3d 509, 513 (4th Cir. 2014) (citing 20
U.S.C. § 1400(d)(1)(A)).
Where an ALJ decides that a student’s
IEP provides a FAPE, the party challenging the IEP “properly
8
The district court actually stated the action was brought
under the “ADEA,” but we construe this as a typo.
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bears the burden of proof in showing that the [ALJ]’s decision
was erroneous.”
Barnett by Barnett v. Fairfax Cty. Sch. Bd.,
927 F.2d 146, 152 (4th Cir. 1991).
A reviewing court “is obliged to conduct a modified de
novo review” of the ALJ’s IDEA decision, “giving ‘due weight’ to
the underlying administrative proceedings.”
MM ex rel. DM v.
Sch. Dist. of Greenville Cty., 303 F.3d 523, 530-31 (4th Cir.
2002)
(quoting
Bd.
of
Educ.
of
Hendrick
Hudson
Cent.
Sch.
Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982)).
In
this
situation,
“findings
of
fact
made
in
administrative
proceedings are considered to be prima facie correct, and if a
reviewing
court
explain why.”
fails
to
adhere
to
them,
it
is
obliged
to
Id. at 531; see also J.P. ex rel. Peterson v.
Cty. Sch. Bd. of Hanover Cty., Va., 516 F.3d 254, 259 (4th Cir.
2008); Doyle v. Arlington Cty. Sch. Bd., 953 F.2d 100, 105 (4th
Cir. 1991).
Furthermore,
[w]hether a district court has accorded the
proper “due weight” to the administrative
proceedings is a question of law -- or at
least a mixed question of law and fact -- to
be reviewed de novo by an appellate court.
In our review, we need not defer to factual
recitations made by a district court from
the
administrative
record,
because
that
court stands in no better position than do
we in reviewing the record.
MM, 303 F.3d at 531.
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If
the
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administrative
findings
of
fact
are
not
“regularly made,” however, they are not entitled to deference.
J.P., 516 F.3d at 259; see also Cty. Sch. Bd. of Henrico Cty.,
Va.
v.
Z.P.,
399
findings
made
entitled
to
findings
were
omitted)).
F.3d
during
a
298,
the
305
state
presumption
regularly
of
(4th
Cir.
2005)
administrative
correctness,
made.”
(internal
(“[F]actual
proceeding
so
long
as
quotation
are
the
marks
Factual findings are not “regularly made” “if they
are reached through a process that is far from the accepted norm
of a fact-finding process.”
J.P., 516 F.3d at 259 (internal
quotation marks omitted); see also Doyle, 953 F.2d at 105 (“[I]n
deciding what is the due weight to be given an administrative
decision under Rowley, we think a reviewing court should examine
the
way
arrived
in
which
the
state
administrative
at
their
administrative
decision
authorities
and
the
have
methods
employed.”).
B.
Appellants
“regularly
made”
for
contend
the
the
ALJ’s
following
IDEA
reasons:
decision
(1)
it
was
was
not
“not
well-reasoned and nor [sic] supported by the record”; (2) it
“failed to make determinations based upon findings of fact and
current IDEA statutes and regulations” and instead characterized
the
issues
as
“policy”
disputes;
13
and
(3)
it
erred
in
its
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analysis regarding “training” of school personnel.
Appellants’
Br. 14-16.
We first note that although Appellants mention that
the ALJ’s “findings were not entitled to deference” and that the
ALJ
“failed
to
make
[certain]
determinations,”
their
opening
brief does not specifically note which findings they challenge
or which “determinations” the ALJ failed to make.
Br.
14.
issue.
Therefore,
Appellants
have
waived
this
Appellants’
particular
See Fed. R. App. P. 28(a)(8)(B) (“The appellant’s brief
must contain . . . appellant’s contentions and the reasons for
them, with citations to the authorities and parts of the record
on which the appellant relies.”); see also Estate of Armstrong
ex rel. Armstrong v. Vill. of Pinehurst, 810 F.3d 892, 898 n.6
(4th Cir. 2016) (“Failure to present or argue assignments of
error in opening appellate briefs constitutes a waiver of those
issues[.]”).
In any event, the ALJ’s proceedings were not “far from
the accepted norm.”
marks omitted).
J.P., 516 F.3d at 259 (internal quotation
First, the ALJ decision was well-reasoned and
supported by the record.
The ALJ heard testimony from numerous
witnesses over four days and clearly reviewed meeting reports,
health
reports,
educational
documents,
and
IEPs.
The
ALJ
credited the testimony of personnel who actually worked with
Se.H.
over
Appellants’
expert,
14
which
is
reasonable
and
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See A.B. ex rel. D.B. v. Lawson, 354 F.3d 315, 328
(4th Cir. 2004) (“IDEA requires great deference to the views of
the
school
system
rather
meaning parent.”).
than
those
of
even
the
most
well-
We see no indication that the ALJ deviated
from the “normal” process of soliciting evidence and hearing
testimony.
Second, Appellants’ reliance on the ALJ’s mention of
“policy” disputes is a red herring.
the
ALJ
relied
requirements
of
on
“policy”
the
Appellants’ Br. 17.
IDEA
Appellants maintain that
rather
to
the
than
“appl[ying]
facts
in
their
the
case.”
In so arguing, Appellants extract isolated
phrases out of context.
The ALJ did state, “The dispute in this case is really
about policy, not facts.”
J.A. 71.
However, the ALJ then
expounded on this statement, explaining that according to the
notes
from
the
March
4,
2013
IEP
meeting
(when
the
parents
raised their concerns for the first time), the parents had been
in
contact
with
the
Maryland
State
Department
of
Education.
Based on a conversation with personnel there, they believed that
someone trained in the Heimlich maneuver and CPR was required to
be in the room with Se.H. when he was eating.
The ALJ found
that, in that March IEP meeting, the parents were referring to
Maryland’s
Technical
Assistance
Bulletin
28,
which
explained,
“Training of personnel [for safety of students during mealtime]
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should include first aid, CPR, Heimlich, signs and symptoms of
aspiration,
and
students/children.”
procedures
specific
to
individual
Id. at 72 (emphasis supplied).
Therefore,
the ALJ’s statement about “policy” was merely a recognition that
the dispute between the parents and AACPS was based in part on
interpretation of a state policy.
The ALJ then mentioned “policy” again, stating:
A review of [the evidence] might lead one to
think that AACPS could have easily complied
with the Parents’ request to forestall
disagreement, and ultimately, litigation.
However, as stated previously, this dispute
is about policy, not facts.
Whether AACPS
could have provided the training that the
Parents wanted is immaterial; the issue is
whether the decision not to do so deprives
the Student of a FAPE.
J.A.
74
(emphasis
supplied).
A
reasonable
reading
of
this
passage is that an ALJ should not consider what an educational
entity
could
have
done;
rather,
it
is
required
to
look
at
whether that entity’s actions were appropriate under the IDEA.
The ALJ in this case did just that.
He applied the information
from extensive testimony and numerous exhibits to the proper
IDEA standards in rendering his decision.
Finally,
without merit.
Appellants’
argument
regarding
training
is
Appellants claim that the ALJ’s statement that
“‘training that a school system decides to use . . . is solely
within
the
purview
of
school
officials’”
16
was
incorrect
and
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“subsequently over ruled [sic]” by the enactment of 20 U.S.C.
§ 1414(d)(1)(A).
20
U.S.C.
§
Appellants’ Br. 16 (quoting J.A. 77); see also
1414(d)(1)(A)(i)(IV)
(An
IEP
should
include
“a
statement of the program modifications or supports for school
personnel [i.e., special training] that will be provided for the
child.” (emphasis supplied)).
But even if § 1414(d)(1)(A) “overruled” the concept
upon
which
the
ALJ
relied,
nothing
undermines the ALJ’s ultimate decision.
whether
AACPS’s
decision
deprived him of a FAPE.
to
forego
in
these
provisions
The ALJ still analyzed
training
Se.H.’s
Aide
See J.A. 77-78 (“The evidence that such
trained personnel would be of benefit to the Student is minimal,
and [AACPS]’s evidence is convincing that it is not necessary,
since
trained
personnel
are
always
in
the
building
immediately available if an emergency occurs.”).
any
perceived
error
on
the
ALJ’s
part
was
and
As a result,
not
materially
erroneous.
For these reasons, the district court was entitled to
give
the
administrative
decision
“due
weight.”
We
reject
Appellants’ argument to the contrary. 9
9
Appellants fail to set forth a sufficient argument
challenging the district court’s or ALJ’s determination that
Se.H.’s IEP provides him with a FAPE. Therefore, they have also
waived this issue on appeal.
See Fed. R. App. Proc.
28(a)(8)(B); Estate of Armstrong, 810 F.3d at 898 n.6.
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III.
Section 504 and ADA Claims
Appellants also contend the district court erred in
granting summary judgment on their Section 504 and ADA claims.
They
maintain
that
the
district
court
did
not
sufficiently
address these claims and that genuine issues of material fact
remain.
On
March
31,
2015,
the
district
court
filed
a
memorandum decision (“Memorandum”), and entered an accompanying
order (“Order”).
At the end of the Memorandum, the district
court
separate
stated,
“A
order
is
being
entered
herewith
affirming the decision of the administrative law judge,” and the
Order itself only purports to affirm “the order entered by the
administrative law judge.”
Id. at 47-48 (emphasis supplied).
As explained above, the ALJ only decided the IDEA issue, did not
address the ADA claims, and did not possess jurisdiction over
the Section 504 claims.
Although the Memorandum mentions the ADA and Section
504,
it
does
so
only
in
the
opening
sentence,
merely
acknowledging that Appellants’ action was “brought under” those
statutes.
J.A. 45.
Further, whereas the Memorandum observes
that the IEP “complies with applicable law,” J.A. 47 n.1, this
court has explained the “IDEA and the Rehabilitation Act are
different
statutes.
Whereas
18
IDEA
affirmatively
requires
Appeal: 15-1486
Doc: 53
participating
appropriate
Filed: 05/02/2016
States
public
to
Pg: 19 of 19
assure
education,
disabled
[S]ection
children
504
.
.
.
a
free
instead
prohibits discrimination against disabled individuals,” Sellers
by Sellers v. Sch. Bd. of City of Mannassas, Va., 141 F.3d 524,
528 (4th Cir. 1998) (citation omitted)).
Therefore, the basis for the district court’s decision
on the ADA and Section 504 claims is not apparent.
We believe
the best course of action is to remand and allow the district
court to clarify the reasoning underlying its disposition of
Appellants’
Section
accommodation,
Plaster,
57
504
and
retaliation,
F.3d
417,
ADA
and
421-22
discrimination,
FAPE
(4th
claims.
Cir.
reasonable
See
1995)
Jones
(remanding
v.
for
further proceedings “in order for the district court to clarify
its ruling”); see also Q Int’l Courier, Inc. v. Smoak, 441 F.3d
214, 220 n.3 (4th Cir. 2006) (“Although we are not precluded
from addressing [questions the district court did not reach], we
deem it more appropriate to allow the district court to consider
them . . . in the first instance on remand.”).
IV.
For
court
with
the
regard
foregoing
to
its
reasons,
IDEA
we
decision,
affirm
and
the
we
district
remand
for
further proceedings consistent with this opinion.
AFFIRMED IN PART
AND REMANDED
19
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