Wong et al v. Education et al

Filing 21

ORDER granting in part and denying in part 13 Motion to Dismiss for Lack of Jurisdiction; granting 14 Motion to Dismiss for Lack of Jurisdiction. The State DOE's motion to dismiss is GRANTED, and the State DOE is dismissed from this case. Th e Clerk of the Court is instructed to remove this party from the case and to amend the caption accordingly. Southington's motion to dismiss is DENIED in part and GRANTED in part. Southington's argument that the Court lacks jurisdiction to hear Plaintiffs' IDEA claims, fails, at least for now and is DENIED accordingly. Southington's motion to dismiss Plaintiffs claims under the FERPA is GRANTED. Signed by Judge Victor A. Bolden on 1/22/2018. (Riegel, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WONG, et al.,
Plaintiffs,
No. 3:16-cv-1873 (VAB)
v.
STATE DEPARTMENT OF EDUCATION,
et al.,
Defendants.

RULING AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
James Wong and Suzanne Hoy (“Plaintiffs”) filed this lawsuit alleging violations of the
Individuals with Disabilities Education Improvement Act (“IDEA”), 20 U.S.C. § 1400, et seq.;
the Americans with Disabilities Act of (“ADA”), 42 U.S.C. § 12101, et seq.; Section 504 of the
Rehabilitation Act (“§ 504”), 29 U.S.C. § 794(a); and the Family Educational Rights and Privacy
Act (“FERPA”), 20 U.S.C. § 1232g. The Complaint specifically alleges that Southington Board
of Education (“Southington”) and the State Department of Education (“State DOE”) (collectively
“Defendants”) have violated their son’s (“Student”) right to a free appropriate public education
(“FAPE”).
The State DOE moves to be dismiss from this lawsuit, ECF No. 14, and Southington
moves to dismiss certain of Plaintiffs’ claims for want of subject matter jurisdiction, ECF No. 13.
For the reasons that follow, the Court GRANTS the State DOE’s motion. The Court
DENIES in part and GRANTS in part Southington’s motion.

1

I.

FACTUAL AND PROCEDURAL BACKGROUND
A.

FACTUAL ALLEGATIONS1

Plaintiffs allege a number of general and specific claims under the IDEA. See generally
Compl., ECF No. 1. Specifically, the Complaint maintains that Defendants failed to
appropriately “label” Student and therefore Defendants failed to provide services that
appropriately addressed Student’s disability thus denying Student a FAPE for Student’s “K-8
school years.” Id. ¶ 2; see also id. ¶ 16. In addition to other remedies not relevant at this time,
Plaintiffs seek reimbursement, with interest, for tuition, medical expenses, and transportation,
due to Defendants failure to provide Student with a FAPE during Student’s third through eighth
grades. Compl. at 14.
On May 9, 2016, Plaintiffs filed an administrative complaint, Case No. 16-0517, with the
Connecticut Department of Labor. Board’s Br. at 3. Hearing Officer Janis Jerman (“HO
Jerman”) presided over the hearing concerning Plaintiffs’ administrative complaint. Id. On May
12, 2016, the Board filed a motion to all claims in Plaintiffs’ administrative complaint that fell
outside the two-year statute of limitations under 34 C.F.R. § 300.507(a)(2) and Conn. Gen. Stat.
§ 10-76h(a)(4), and any claim Plaintiffs raised regarding alleged violations of the FERPA. Id.
HO Jerman ruled in the Board’s favor and dismissed Plaintiffs’ claims relating IDEA violations
that allegedly occurred during school periods prior to May 10, 2014, and each claim alleging
violations of the FERPA. Id. at 3‒4; May 24, 2016, Decision on Mot. to Dismiss at 2, Board’s
Br., Ex. 6, ECF No 13-8.

1

The Court sets out only alleged facts necessary for the resolving the pending motions.
2

After the presentation of evidence at a hearing on July 18, 2016, and continued on July
26, 27, and August 27 of 2016, HO Jerman issued a final decision and order in which she
determined that Student’s parents were not entitled to reimbursement for the cost of the unilateral
private placement and no other remedy was appropriate. Board’s Br. at 6‒7.
B.

PROCEDURAL HISTORY2

On October 14, 2016, Plaintiffs filed a Complaint in Superior Court of Connecticut,
Judicial District of New Britain, under 20 U.S.C. § 1415(i)(2)(A), appealing the final decision
and order of HO Jerman. Compl. ECF No. 1-1. Southington then removed Plaintiffs’ lawsuit to
federal court under 20 U.S.C. § 1448(c). ECF No. 1. The lawsuit alleges four principal claims:
(1) inappropriately labeling and denial of services, thus depriving Student of a FAPE, 20 U.S.C.
§ 1400, et seq.; (2) denial of an appropriate individualized education plan in violation of § 504,
29 U.S.C. § 794(a); (3) denial of other reasonable accommodations under the ADA, 42 U.S.C. §
12101, et seq.; and (4) denial of access to education records in violation of the FERPA, 20
U.S.C. § 1232g.
The State Board of Education moves to dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(1) and 12(b)(6). Southington also moves to dismiss the Complaint under
Federal Rule of Civil Procedure 12(b)(1). ECF No. 13, and. ECF No. 14.3
On January 16, 2018, the Court held a hearing on Defendants’ pending motions. ECF No.
20. Plaintiffs failed to appear, but sent a message to counsel, on the morning of the hearing, that

2

The Court takes judicial notice of certain documents relating to Plaintiffs’ administrative hearing. See CombierKapel v. Biegelson, 242 Fed. App’x 714, 715 (2d Cir. 2007) (“The district court did not err in considering the
[Impartial Hearing Officers]’s decision, along with certain other documents in the administrative record, since such
documents were subject to judicial notice and were integral to the complaint.”) (citing Kavowras v. New York Times
Co., 328 F.3d 50, 57 (2d Cir. 2003); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
3

The Court notes that Plaintiffs have not opposed either motion.
3

they wished to continue the hearing. Plaintiffs, however, failed to contact the Court and did not
move to continue the hearing. Counsel for Defendants appeared for the hearing, but Plaintiffs did
not. After waiting thirty minutes, the Court adjourned the hearing. As of the date of this opinion,
Plaintiffs still have not contacted the Court to re-schedule the hearing, and since Defendants are
the moving parties, the Court will issue its ruling without a hearing.
II.

STANDARD OF REVIEW
A district court may not entertain a case where it lacks subject matter jurisdiction. See

Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“A case
is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it.”). The Court must “[c]onstrue
all ambiguities and draw[ ] all inferences in [the plaintiff]’s favor,” and “may refer to evidence
outside the pleadings.” Id. “A plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” Id. (citing Malik v. Meissner, 82 F.3d
560, 562 (2d Cir. 1996)). This burden is met “as long as [the] complaint states a colorable federal
claim.” Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (citation omitted).
When reviewing a motion to dismiss under Rule 12(b)(1), “a court must accept as true all
material factual allegations in the complaint.” Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129,
131 (2d Cir. 1998) (citation omitted). “[J]urisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the party asserting
it.” APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003) (citation omitted).
A district court may also dismiss a case for failure to state a claim under Fed. R. Civ. P.
12(b)(6). In order to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain
factual allegations sufficient to “raise a right to relief above the speculative level” and “enough
4

facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
555, 570 (2007). A claim is facially plausible if “the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “detailed factual allegations” are
not required, a complaint must offer more than “labels and conclusions,” or “a formulaic
recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual
enhancement.” Twombly, 550 U.S. at 555, 557. Plausibility at the pleading stage is nonetheless
distinct from probability, and “a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and . . . recovery is very remote and
unlikely.” Id. at 556 (internal quotation marks omitted).
Although courts considering motions to dismiss under Rule 12(b)(6) generally “must
limit [their] analysis to the four corners of the complaint,” they may also consider documents that
are “incorporated in the complaint by reference.” Kermanshah v. Kermanshah, 580 F. Supp. 2d
247, 258 (S.D.N.Y. 2008). The Court may also consider matters subject to judicial notice, which
include publicly filed documents. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
322 (2007); DeSilva v. N. Shore-Long Island Jewish Health Sys. Inc., 770 F. Supp. 2d 497, 50607 (E.D.N.Y. 2011).
Finally, pro se complaints “must be construed liberally and interpreted to raise the
strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)
(internal quotation marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 101–02 (2d Cir. 2010)
(discussing the “special solicitude” courts afford pro se litigants).

5

III.

DISCUSSION
A.

CLAIMS AGAINST THE STATE DEPARTMENT OF EDUCATION

The State DOE maintains that it is neither a necessary nor an appropriate party to an
appeal of a final decision from a special education due process hearing. State BOE’s Br. at 2,
ECF No. 14-1. The Court agrees.
“This Court has previously held that neither the Commissioner of DOE nor DOE is a
proper or necessary party to an appeal of a hearing officer’s decision under the IDEA.” M.K. ex
rel. Mrs. K. v. Sergi, No. 3:96-cv-00482 (WIG), 2007 WL 988621, at *4 (D. Conn. Mar. 30,
2007) (citing omitted). “State Defendants are not liable for the decision, even though erroneous,
on the part of an independent, impartial hearing officer. Liability may not flow from decisions
over which State Defendants have no control and cannot legally influence.” Fetto v. Sergi, 181 F.
Supp. 2d 53, 70 (D. Conn. 2001) (citing Lillbask v. Sergi, 117 F. Supp. 2d 182, 192 (D. Conn.
2000) (noting also that “any claim of legal error on the part of the hearing officer should
procedurally flow against [the town] Defendants”)).
“On the other hand, this Court has [also] held that the state education agency is a proper
party to actions involving claims of systemic violations of the IDEA.” M.K. ex rel. Mrs. K., 2007
WL 988621, at *4 (internal quotation marks omitted) (quoting Fetto, 181 F. Supp. 2d at 72); see
also 20 U.S.C. § 1403(a) (“A State shall not be immune under the 11th amendment to the
Constitution of the United States from suit in Federal court for a violation of this chapter.”). “A
systemic claim is one which ‘implicates the integrity of the IDEA’s dispute resolution
procedures themselves, or requires restructuring of the education system itself in order to comply
with the dictates of the [IDEA].’” Id. (quoting Fetto, 181 F. Supp. 2d at 72).

6

The Court also recognizes that under certain circumstances “state defendants, including
the State Board of Education, may be ordered by the district court to provide compensatory
relief.” Fetto, 181 F. Supp. 2d at 72 (citation omitted). For example, in Mrs. C. v. Wheaton, the
court determined that compensable education was an appropriate remedy in light of the court’s
determination that the state department of education was required to follow IDEA’s procedures
before terminating a student’s education placement. 916 F.2d 69, 75 (2d Cir. 1990). In Burr by
Burr v. Ambach, the court found that the plaintiff, in a suit under the IDEA against a state
defendant, was “entitled to a remedy for deprivation of the right that the statute clearly provided
him—a free appropriate education between the ages of three and twenty-one”—where the
commissioner took three months to review the hearing officer’s decision. 863 F.2d 1071, 1078
(2d Cir. 1988), cert. granted, judgment vacated sub nom. Sobol v. Burr, 492 U.S. 902 (1989),
and re aff’d on reconsideration sub nom. Burr by Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989)
(citing 20 U.S.C. § 1412(2)(B) (“The Secretary shall not take any final action . . . until the State
educational agency affected by such action has had an opportunity, for not less than 45 days after
receiving written notice thereof, to submit written objections and to appear before the Secretary .
. . to show cause why such action should not be taken.”)). And, in Garro v. State of Connecticut,
the court held that in the absence of “gross” procedural violations, the district court properly
dismissed the plaintiff’s claim for compensatory education. 23 F.3d 734, 737 (2d Cir. 1994).
Under Mrs. C., Burr by Burr, and Garro, a plaintiff must allege procedural violations under the
IDEA to seek compensatory relief against it.
The Complaint plainly states that Plaintiffs “are appealing [HO Jerman’s] decision”
under the “I.D.E.A.” Compl. at 2, ECF No. 1-1. None of Plaintiffs’ allegations challenge the
“integrity of the IDEA’s dispute resolution procedures themselves, or require[] restructuring of
7

the education system itself.” M.K. ex rel. Mrs. K., 2007 WL 988621, at *4. And unlike Mrs. C.,
Burr by Burr, and Garro, the Complaint does not allege that the State DOE failed to follow the
procedures set out under the IDEA. Plaintiffs seek to be reimbursed for the cost of “tuition,
medical expenses and transportation with interest for Defendants alleged violations of the IDEA.
Compl. at 14. Nowhere does the Complaint allege that the State DOE violated the procedural
safeguards that the IDEA provides to students with disabilities. The limited exception recognized
in Mrs. C., Burr by Burr, and Garro therefore is not applicable to this case. See, e.g., French v.
New York State Dep’t of Educ., 476 Fed. App’x 468, 471 (2d Cir. 2011) (“[A] form of
prospective equitable relief, known as compensatory education remains available to such an
individual if a ‘gross procedural violation’ has resulted in the student’s complete deprivation of a
FAPE during her period of eligibility.” (citing Garro, 23 F.3d at 737)).
As a result, the State DOE is not a proper party to this litigation and Plaintiffs therefore
fail to state a claim upon which relief can be granted by this Court. The State DOE’s motion to
dismiss will be granted.
B.

CLAIMS AGAINST THE SOUTHINGTON BOARD OF EDUCATION
1.

Individuals with Disabilities Education Act (“IDEA”)

Under 42 U.S.C. § 1983, Plaintiffs have alleged that Southington denied Student a FAPE.
As a precondition to filing an IDEA claim in federal court, a plaintiff must timely pursue
administrative remedies. See 20 U.S.C. § 1415(f)(3)(C) and (l) (providing procedures and
deadlines for an impartial due process hearing).
a.

Exhaustion of Administrative Remedies

Southington first argues that this Court lacks jurisdiction over Plaintiffs’ IDEA claims
because, as Southington maintains, Plaintiffs have failed to exhaust administrative remedies
8

available to them as to certain of Plaintiffs’ allegations. Southington’s Br. at 12‒13. The Court
disagrees.
Although the IDEA provides for a federal cause of action to enforce such rights, the
IDEA specifies, as a prerequisite to its application, exhaustion of administrative remedies:
“[B]efore the filing of a civil action under such laws seeking relief that is also available under
this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to
the same extent as would be required had the action been brought under this subchapter.” 20
U.S.C. § 1415(l).
If parents believes their child has been deprived of a FAPE, the IDEA provides for “an
impartial due process hearing . . . conducted by the state educational agency or local educational
agency, as determined by State law.” 20 U.S.C. § 1415(f)(1)(A). Congress left the details of how
a parent makes a complaint regarding an alleged deprivation of a FAPE to the prerogative of the
States. As a result, Connecticut has adopted a statutory and regulatory scheme, including
exhaustion requirements, that a parent must satisfy to seek judicial relief. See generally Conn.
Gen. Stat. 10-76a et seq.; Conn. Agencies Regs. § 10-76d-19.
Consistent with the IDEA, Connecticut General Statute § 10-76(h)(1), provides that a
parent may seek a hearing and review of a decision concerning a student’s identification,
evaluation, educational placement, or the provision of a FAPE with a due process hearing
conducted by an impartial hearing officer. An impartial hearing officer must return a final
decision within forty-five days after a due process hearing. Conn. Gen. Stat. § 10-76h. Under
Connecticut law, a parent may challenge a final administrative decision in state court; filing a
petition for reconsideration is not a prerequisite to making such an appeal. Conn. Gen. Stat. § 4183(a).
9

The IDEA’s exhaustion requirement applies whenever a plaintiff “seek[s] relief that is []
available under [the IDEA],” 20 U.S.C. § 1415(l). “‘Relief that is also available’ has been
broadly construed to ‘mean relief for the events, conditions, or consequences of which the person
complains, not necessarily relief of the kind the person prefers.’” Myslow v. New Milford Sch.
Dist., No. 3:03-cv-496 (MRK), 2006 WL 473735, at *10 (D. Conn. Feb. 28, 2006) (quoting
Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 488 (2d Cir. 2002)).
The Second Circuit has noted that “[i]t 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 . . . .”
J.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004).
“The IDEA’s administrative procedures test whether a school has met [its]
obligation[s]—and so center[s] on the Act’s FAPE requirement.” Fry v. Napoleon Cmty. Sch.,
137 S. Ct. 743, 754 (2017). “For that reason, § 1415’s exhaustion rule hinges on whether a
lawsuit seeks relief for the denial of a free appropriate public education.” Id. This is true
regardless of whether the lawsuit is brought under “both the IDEA and other federal statutes,
including the ADA, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1983.” A. ex rel. A. v.
Hartford Bd. of Educ., 976 F. Supp. 2d 164, 181–82 (D. Conn. 2013) (citing Cave v. E. Meadow
Union Free Sch. Dist., 514 F.3d 240, 248 (2d Cir. 2008)); R.A. v. State of Connecticut Dep’t of
Educ., No. 3:16-cv-1215 (MPS), 2016 WL 5923411, at *1 (D. Conn. Oct. 11, 2016) (“Plaintiffs’
Section 504 and ADA claims are subject to the exhaustion requirement of the Individuals with
Disabilities Education Act”).
Although the Second Circuit has routinely held that exhaustion of administrative
remedies under the IDEA is a jurisdictional question, see, e.g., Cave v. E. Meadow Union Free
Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008), the court has also been “equivocal” about whether
10

the IDEA’s exhaustion requirement should be treated as a jurisdictional rule or a claimsprocessing rule. Coleman v. Newburgh Enlarged City Sch. Dist. 503 F.3d 198, 203 (2d Cir.
2007). The Second Circuit in Coleman, however, declined to hold that a failure to exhaust was
an affirmative defense. Id. (citing In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (“This panel is
bound by the decisions of prior panels until such time as they are overruled either by an en banc
panel of our Court or by the Supreme Court.”)).
Since Coleman, courts in this District have adhered to the rule that a court is divested of
jurisdiction when a party fails to exhaust administrative remedies under the IDEA. See R.A. v.
State of Connecticut Dep’t of Educ., No. 3:16-cv-1215 (MPS), 2016 WL 5923411, at *5 n.8 (D.
Conn. Oct. 11, 2016) (“While I could find no Second Circuit case addressing this uncertainty
since Coleman, later cases . . . have continued to treat the failure to exhaust IDEA remedies as a
jurisdictional defect. Therefore, I will treat the exhaustion requirement as jurisdictional.”); A. ex
rel. A. v. Hartford Bd. of Educ., 976 F. Supp. 2d 164, 181 (D. Conn. 2013) (“Accordingly,
barring applicable exceptions already accepted by this circuit, exhaustion of administrative
remedies remains a jurisdictional prerequisite and not merely an affirmative defense.”).
Nevertheless, there is a growing trend based on Supreme Court precedent and decisions from
other Circuit Courts to recognize the exhaustion of administrative remedies under IDEA as an
affirmative defense and not a jurisdictional rule.4

4

Several Circuit Courts have considered the question, and determined that IDEA exhaustion operates as an
affirmative defense, placing the burden on the defendant. See Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d
527, 533 (7th Cir. 2006) (describing the IDEA as a claims-processing rule); Payne v. Peninsula Sch. Dist., 653 F.3d
863, 867 (9th Cir. 2011), overruled on other grounds by Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (same); cf.
Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 130 (3d Cir. 2017) (expressing doubt as to IDEA exhaustion is a
jurisdiction requirement but declining to address the issue); Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 784
(10th Cir. 2013) (noting that “there is much to be said” for the conclusion that IDEA exhaustion is a claimsprocessing rule but declining to rule on the issue).
11

The Court, however, need not reach that issue here. Plaintiffs have administratively
exhausted. Southington concedes that Plaintiffs filed an administrative complaint alleging that
Southington deprived Student of a FAPE and seeking compensation for educational costs.
Board’s Br. at 3. On September 1, 2016, HO Jarman issued a Final Decision and Order in
Plaintiffs’ case. Id. at 3; id., Ex. 2, ECF No. 13-4. Plaintiffs then filed an appeal of that Final
Decision and Order in Connecticut Superior Court, District of New Britain, Compl., ECF No. 11 at 2, with claims that do not materially deviate from Plaintiffs’ administrative complaint.
Compare Board’s Br., Ex. 1, with Compl., ECF No. 1-1 at 2. Because the IDEA’s exhaustion
requirement turns on whether a parent “seek[s] relief that is [] available under [the IDEA],” 20
U.S.C. § 1415(l), Defendants cannot reasonably argue that Plaintiffs have failed to exhaust their
claims. The Court’s Rule 12(b)(1) inquiry must end here. As a result, Plaintiffs have exhausted
their administrative remedies.
For these reasons, Southington’s 12(b)(1) motion as to Plaintiffs’ failure to exhaust
administrative remedies available under the IDEA is denied.
b.

Statute of Limitations

Plaintiffs contend that Southington denied Student a FAPE under the IDEA, during the
years he attended third through eighth grades. Southington argues that, under the IDEA’s statute
of limitations, the Court lacks jurisdiction over a number of these claims. The Court disagrees.

Such a determination is consistent with other civil statutory schemes in which exhaustion functions as
claims-processing rule. See, e.g., Jones v. Bock, 549 U.S. 199, 212 (2007) (finding that, under the Prison Reform
Litigation Reform Act, exhaustion is an affirmative defense); Day v. McDonough, 547 U.S. 198, 199 (2006)
(recognizing that exhaustion of remedies is an affirmative defense in the context of habeas petitions); Hardaway v.
Hartford Pub. Works Dep’t, No. 16-3074, 2018 WL 385217, at *1 (2d Cir. Jan. 12, 2018) (finding that exhaustion
on Title VII is an affirmative defense); Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 446 (2d Cir. 2006)
(holding that exhaustion under the Employee Retirement Income Security Act is an affirmative defense).

12

Although the issue of whether IDEA’s statute of limitations period is jurisdictional
remains an open question in the Second Circuit, see Phillips v. Generations Family Health Ctr.,
723 F.3d 144, 149 (2d Cir. 2013) (“[W]e have explicitly declined to resolve whether the FTCA’s
statute of limitations is ‘jurisdictional’. . . .”), courts in the Circuit, have noted that “[t]he IDEA’s
statute of limitations is an affirmative defense rather than a jurisdictional prerequisite,” M.G. v.
New York City Dep’t of Educ., 15 F. Supp. 3d 296, 304 (S.D.N.Y. 2014) (citing Somoza v. New
York City Dep’t of Educ., 538 F.3d 106, 111 (2d Cir. 2008) (noting the court below “held a threeday bench trial on the merits of plaintiff’s [IDEA] claims and on the affirmative defenses raised
by the DOE—namely, that plaintiff’s claims were time-barred”)), and therefore “normally
cannot be decided on a motion to dismiss,” In re S. African Apartheid Litig., 617 F. Supp. 2d
228, 287 (S.D.N.Y. 2009).5 There is no reason to depart from that approach here.
Indeed, the plain language of the IDEA supports recognizing that the expiration of the
exhaustion statute of limitations is an affirmative defense that must be pled and proven and
therefore is not jurisdictional. “When Congress reauthorized the IDEA in 2004, it enacted 20
U.S.C. § 1415(f)(3)(C), a statute of limitations that requires parents to file a due process
complaint no more than two years after the parents ‘knew or should have known’ about the
alleged deprivation, that is, within two years of the reasonable discovery of that violation.” G.L.
v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 604 (3d Cir. 2015); accord 20 U.S.C. §
1415(f)(3)(C) (“A parent . . . shall request an impartial due process hearing within 2 years of the
date the parent or agency knew or should have known about the alleged action that forms the

5

Tellingly, in the single case the Board cites in support of its argument, the Second Circuit reviewed the lower
court’s granting of a Rule 56 motion, not a Rule 12 motions, addressing whether the plaintiffs’ IDEA claims were
time barred. M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003).
13

basis of the complaint . . . .”); 34 C.F.R. § 300.507(a)(2) (“The due process complaint must
allege a violation that occurred not more than two years before the date the parent or public
agency knew or should have known about the alleged action that forms the basis of the due
process complaint . . . .”).
Generally, statute of limitations periods predicated on discovery, such as this one, do not
lend themselves to dismissal under Rule 12(b)(6), much less Rule 12(b)(1). In M.D. v.
Southington Bd. Of Educ., for example, the Second Circuit—after remand to the district court for
further factual development of admissible evidence and to decide whether it was appropriate to
convert that defendant’s Rule 12 motion into a Rule 56 motion—affirmed summary judgment for
the defendants. 334 F.3d at 219; see also BPP Illinois, LLC v. Royal Bank of Scotland Grp. PLC,
603 Fed. App’x 57, 59 (2d Cir. 2015) (“The statute of limitations is an affirmative defense, and a
plaintiff is not required to plead, in a complaint, facts sufficient to overcome an affirmative
defense.” (internal quotation marks and citation omitted); Official Comm. of Unsecured
Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (A
complaint should not be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim
upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief.” (internal quotation marks
omitted and citation omitted)).
Courts, however, recognize an exception to the principle that statute of limitations
challenges should be resolved on the merits. “[W]here the complaint facially shows
noncompliance with the limitations period and the affirmative defense clearly appears on the
face of the pleading” a party may invoke a statute of limitation defense in an 12(b)(6) motion. In
re S. African Apartheid Litig., 617 F. Supp. 2d 228, 287 (S.D.N.Y. 2009) (citing Oshiver v.
14

Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir. 1994); see also Ghartey v.
St. John’s Queens Hospital, 869 F.2d 160, 162 (2d Cir.1989) (citation omitted) (“When the basis
for the motion to dismiss is the applicability of a statute of limitations, the motion is considered
under the standard set forth in Rule 12(b)(6) of the Federal Rules.”); St. John’s Univ., New York
v. Bolton, 757 F. Supp. 2d 144, 157 (E.D.N.Y. 2010) (“[U]nder Rule 12(b)(6), a claim may be
dismissed as time-barred under the statute of limitations only if the factual allegations in the
complaint clearly show that the claim is untimely.” (citing Harris v. City of New York, 186 F.3d
243, 250 (2d Cir.1999)). Under this provision, in contrast to a motion under Rule 12(b)(1), the
Court may consult evidence outside the four corners of the complaint. Makarova, 201 F.3d at
113.
Here, absent factual development, Southington cannot argue that “the affirmative defense
clearly appears on the face of the pleading.” In re S. African Apartheid Litig., 617 F. Supp. 2d at
287. For a defendant to avail itself of an affirmative defense—e.g., that Plaintiffs “knew or
should have known” about an alleged deprivation—factual development beyond those plead is
typically required. The Complaint does not address what Plaintiffs “knew or should have known”
and when. And Rule 8 of the Federal Rules of Civil Procedure does not require Plaintiffs to do
so. Under Rule 8, “complaints need not anticipate, and attempt to plead around, potential
affirmative defenses.” Davis v. Indiana State Police, 541 F.3d 760, 763 (7th Cir. 2008) (citing
Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
To the extent that Southington believes that, in the first instance, Plaintiffs’ allegation are
insufficient to support a “plausible” claim, Federal Rule of Civil Procedure 12(b)(6) provides a
vehicle to raise the issue. Twombly, 550 U.S. at 556. A Rule 12(b)(1) motion should not be used
as an attempt to avoid Rule 8’s notice-pleading standards.
15

Moreover, in reauthorizing the IDEA, Congress adopted two tolling exceptions to the
statute of limitations period. As a result, the IDEA’s statute of limitations period does not apply
to a parent who was prevented from requesting the hearing due to (1) “specific
misrepresentations by the local educational agency that it had resolved the problem forming the
basis of the complaint,” or (2) “the local educational agency’s withholding of information from
the parent” that the IDEA requires the agency to provide. 20 U.S.C. § 1415(f)(3)(D). In other
words, in order to succeed in dismissing a lawsuit because of the expiration of the statute of
limitations, a defendant will have to address even more factual scenarios, beyond the filing date
of the lawsuit.
For all of these reasons, Southington’s 12(b)(1) motion as to Plaintiffs’ IDEA claims is
denied.
2.

Family and Educational Privacy Act (“FERPA”)

Under 42 U.S.C. § 1983, Plaintiffs allege that Southington violated the FERPA by failing
to provide Plaintiffs access to the Student’s “ED File” and by failing to maintain Student’s
records in a centralized location. Compl. ¶ 20. Southington contends that the FERPA does not
provide a private right of action for Plaintiffs to enforce the statute with respect to the
maintenance of Student’s educational records. Board Br. at 15. The Court agrees.
The FERPA prohibits federal funding to any state educational agency “that has a policy
of denying, or effectively prevents, the parents of a students the right to inspect and review the
education records maintained by the State educational agency.” 20 U.S.C. § 1232g(a)(1)(B). The
FERPA also prohibits federal funding to “any educational agency or institution which has a
policy or practice of permitting the release of education records . . . of students without the

16

written consent of their parents to any individual, agency, or organization.” 20 U.S.C. §
1232g(b)(1).
In addressing whether a student could sue a university for damages under § 1983 to
enforce § 1232g(b)(1), the Supreme Court held that “[t]here is no question that FERPA’s
nondisclosure provisions fail to confer [individually] enforceable rights.” Gonzaga Univ. v. Doe,
536 U.S. 273, 274 (2002). The FERPA “speak[s] only to the Secretary, directing that “[n]o funds
shall be made available” to any “educational . . . institution” which has a prohibited “policy or
practice.” Id. (quoting § 1232g(b)(1)); see also § 1232g(a)(1)(B) (including substantially similar
language). “This focus is two steps removed from the interests of individual students and parents
and clearly does not confer the sort of individual entitlement that is enforceable under § 1983.”
Id. 274–75. As a result, even if Southington did violate the FERPA as alleged, “recipient
institutions can avoid termination of funding so long as they ‘comply substantially’ with []
FERPA’s requirements.” Id. at 275 (quoting 20 U.S.C. § 1234c(a)).
Although Gonzaga University solely addresses whether appellee could sue under §
1232g(b)(1), because § 1232g(a)(1)(B) is cast in terms substantially similar to those in §
1232g(b)(1), Gonzaga University’s holding similarly extends to § 1232g(a)(1)(B). See Taylor v.
Vermont Dep’t of Educ., 313 F.3d 768, 785 (2d Cir. 2002) (reasoning “[a]lthough the ‘rights’
language of § 1232g(a) is stronger than that used in § 1232g(b), because the language in §
1232g(a) can be read as simply modifying the terms imposed on fund-receiving institutions, we
cannot say that it creates an ‘unambiguously conferred right’” and therefore holding that the
FERPA’s access provisions do not create a personal right enforceable under § 1983).
For these reasons, Plaintiffs’ claims under the FERPA are dismissed.

17

IV.

CONCLUSION
The State DOE’s motion to dismiss is GRANTED, and the State DOE is dismissed from

this case. The Clerk of the Court is instructed to remove this party from the case and to amend
the caption accordingly.
Southington’s motion to dismiss is DENIED in part and GRANTED in part.
Southington’s argument that the Court lacks jurisdiction to hear Plaintiffs’ IDEA claims, fails, at
least for now and is DENIED accordingly. Southington’s motion to dismiss Plaintiffs’ claims
under the FERPA is GRANTED.
SO ORDERED at Bridgeport, Connecticut, this 22th day of January, 2018.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

18