M.G. et al v. New York City Department of Education et al
OPINION AND ORDER re: 25 MOTION to Dismiss the First Amended Complaint filed by Dennis Walcott, New York City Department of Education, New York City Board of Education. For the foregoing reasons, the City's motion to dismiss is granted with respect to the individual claims of E.H. and D.D. The motion is denied with respect to Y.T. as well as the systemic claims asserted by the other plaintiffs. Plaintiffs are ordered to join the State of New York within thirty (30) days or their cl aims challenging state administrative procedures will be dismissed. The Clerk of the Court is directed to close this motion [Docket Entry No. 25]. A conference is scheduled for February 20,2014 at 4:30 pm. (Signed by Judge Shira A. Scheindlin on 1/21/2014) (cd)
UNITED STATES DISTRICT COURT
M.G. and V.M. on behalf of themselves individually
and their son, Y.T.; M.W. on behalf of herself
individually and her son, E.H.; A.D. on behalf of herself 1
individually and her son, D.D.,
13 Civ. 4639 (SAS)
NEW YORK CITY DEPARTMENT OF
EDUCATION; NEW YORK CITY BOARD OF
EDUCATION; DENNIS WALCOTT,l in his official
capacity as Chancellor of the New York City School
SHIRA A. SCHEINDLIN, U.S.D.J.:
The parents of three autistic children bring this action against the New
York City Department of Education and other defendants ("the City"), alleging a
failure to provide adequate special education services to their children in violation
of the Individuals with Disabilities Education Act ("IDEA"), Section 504 of the
Rehabilitation Act of 1973 ("Section 504"), 42 U.S.C. § 1983, the Due Process
As of January 1,2014, Carmen Farina replaced Dennis Walcott as the
Chancellor of the New York City School District.
Clause of the Fourteenth Amendment, the New York State Constitution, and
several New York State education laws and regulations. Plaintiffs also allege that
the City employs unlawful policies and practices regarding the provision of
services to autistic children on a systemic basis.
On July 9,2013, Y.T. and his parents, M.G. and Y.M. ("the Y.T.
plaintiffs") sought a preliminary injunction to compel the City to provide certain
services to Y.T. during the pendency of his administrative proceedings. On August
1, 2013, I granted plaintiffs' motion with respect to the 1: 1 applied behavioral
analysis ("ABA") home services, which I concluded were part ofY.T.'s thencurrent educational placement. As such, the ABA services constituted pendency
services exempt from administrative exhaustion. 2 However, I denied the remaining
relief requested because plaintiffs had not established that their failure to exhaust
administrative remedies should be excused. Therefore, I lacked jurisdiction to
consider plaintiffs' request for services beyond Y.T. 's then-current educational
On July 25, 2013, plaintiffs amended their complaint to add E.H. and
his mother M.W. ("the E.H. plaintiffs"), and D.D. and his mother A.D. ("the D.D.
See M.G. v. New YorkCityDep'tofEduc., No. 13 Civ. 4639, 2013
WL 3974165, at *5-6 (S.D.N.Y. Aug. 1,2013).
plaintiffs"). Although the City did not contest the pendency services requested by
the E.H. and D.D. plaintiffs, the hearing officer assigned to their cases refused to
sign the requested pendency orders. 4 On July 29, 2013, I endorsed a pendency
order enumerating services to be provided to E.H. and D.D. during the course of
their administrative proceedings.
The City now moves to dismiss the First Amended Complaint
("FAC") on the grounds that plaintiffs have failed to exhaust their administrative
remedies in accordance with the IDEA and cannot demonstrate that exhaustion
should be excused. The City also moves to dismiss the claims implicating state
administrative procedures unless New York State is joined as a necessary party
under Rule 19 of the Federal Rules of Civil Procedure. Finally, the City moves to
dismiss Y.T.'s claims from the 2008-2009,2009-2010, and 2010-2011 school
years as time-barred under the IDEA's statute of limitations. For the reasons that
follow, the City'S motion is granted in part and denied in part.
The IDEA requires participating states to provide disabled children
with a free and appropriate public education ("FAPE") tlrrough an Individualized
See First Amended Complaint ("FAC") ~ 363.
Education Program ("IEP") to be revised at least once a year. 5 The IDEA also
grants parents certain procedural rights, including the right to an impartial due
process hearing regarding their child's placement and services. 6 In New York, an
Impartial Hearing Officer ("IHO") from the local educational agency conducts the
initial due process hearing and issues written findings.7 The IHO's decision may
then be appealed to the New York State Education Department's ("NYSED's")
Office of State Review, where a State Review Officer ("SRO") will examine the
record and issue an "independent decision."g After exhausting the two-tiered
administrative review process, an aggrieved party may then seek judicial review in
federal or state court. 9
Summary of Administrative Proceedings
Y.T. is an eleven-year-old boy who entered the public school system
after moving to New York City from Egypt in 2008.10 In February of2012, the
See 20 U.S.c. §§ 1400(d)(1)(A), 1401(9), 1414(d)(4)(A) (2010).
See id. § 1415(f).
See N.Y. Educ. Law § 4404(1) (McKinney 2007).
20 U.S.C. § 1415(g).
See id. § l415(i)(2)(A).
Y.T. plaintiffs filed a due process complaint challenging the recommendations
made for Y.I. in the 2008-2009,2009-2010,2010-2011, and 2011-2012 school
years. ll After entering several interim orders, the IHO rendered a final decision on
February 11,2013. 12 In brief summary, the IHO denied compensatory services but
ordered additional 1: 1 after-school services for the 2011-2012 school year. 13
On March 25,2013, plaintiffs appealed the IHO's decision to
NYSED.14 The matter was fully briefed and submitted in July of 20 13. 15 As of
December 3, 2013, the SRO still had not issued a decision. 16
On July 3,2013, the Y.T. plaintiffs filed another due process
complaint challenging the recommendations made for Y.T. for the 2012-2013 and
2013-2014 school years. 17 Although the City states that an initial hearing was
See id. '33.
See id. , 198.
See id. ,,201,207,209.
See id. '219.
See MG., 2013 WL 3974165, at *6 ("[P]laintiffs submitted their last
filing in that review on July 1, and briefing should have been fully submitted as of
See Plaintiffs' Memorandum of Law in Opposition to Defendants'
Motion to Dismiss (''PI. Mem.") at 3-4.
See id. at 4; Defendants' Memorandum of Law in Support of Their
Motion to Dismiss the First Amended Complaint ("Def. Mem.") at 4.
scheduled before the IHO for October 17, 2013,18 the hearing still had not
commenced as of December 3, 2013. 19
E.H. is a student classified with autism who has received special
education services from the City since the 2009-2010 school year. 20 M.W. has
filed due process complaints regarding E.H. 's educational program in each school
year since that time. Two of those complaints prevailed at IHO hearings, and two
were settled by stipulation. 21 On July 8,2013, M.W. filed a due process complaint
challenging the City's recommendations for the 2013-2014 school year.22
According to the City, the impartial hearing is currently before the IHO.23
D.D. is a student classified with autism who has received special
education services since at least 2010. 24 A.D. filed due process complaints
See Def. Mem. at 4.
See PI. Mem. at 5.
See FAC ~I~ 10,274.
274, 276, 280.
See Def. Mem. at 5.
See F AC ~~ 241-242.
regarding D.D. 's services for the 2010-2011 and 2012-2013 school years. 25
Although A.D. allegedly prevailed at both of those hearings, she claims that the
City did not implement all of the IHO's orders?6 On July 8,2013, A.D. filed
another due process complaint challenging the City's recommendations for the
2013-2014 school year.27 In September of 2013, the IHO granted the services
requested in full, and the Ci ty did not appeal. 28
STANDARD OF REVIEW
In deciding a motion to dismiss pursuant to Rule l2(b)(6), the court
must '''accept all factual allegations in the complaint as true, and draw all
reasonable inferences in the plaintiffs favor. ",29 The court "may consider the facts
alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint.,,30
The court evaluates the sufficiency of the complaint under the "two
See id. 'r~ 242, 246.
243,244,248, 249, 250.
255; PI. Mem. at 6.
See PI. Mem. at 6.
Wilson v. Merrill Lynch & Co., 671 F.3d 120, 128 (2d Qr. 2011)
(quoting Holmes v. Grubman, 568 F.3d 329,335 (2d Or. 2009)).
DiFalco v. MSNBC CableL.L.e., 622 F.3d 104,111 (2d Cir. 2010).
pronged approach" suggested by the Supreme Court in Ashcroft v. Iqbal. 31 Under
the first prong, a court may "begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption of truth.,,32 For
example, "[ t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."33 Under the second prong of Iqbal,
"[w]hen there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
relief."34 A claim is plausible "when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged."35 "The plausibility standard is not akin to a probability
requirement, but it asks for more than a sheer possibility that a defendant has acted
Exhaustion of Administrative Remedies
See 556 U.S. 662,678-79 (2009).
Id. at 679.
Id. at 678.
Id. at 679.
Id. at 678.
Id. (quotation marks omitted).
The IDEA requires exhaustion of administrative remedies prior to
judicial review. 37 However, the Supreme Court has held that exhaustion is excused
where it would be "futile or inadequate.,,38 Plaintiffs bear the burden of
demonstrating that exhaustion would be futile or inadequate under the
In the Second Circuit, exhaustion may be excused in "cases involving
systemic violations that [cannot] be remedied by local or state administrative
agencies 'because the framework and procedures for assessing and placing students
in appropriate educational programs [is] at issue. ",40 The same rationale applies
where "'an agency has adopted a policy or pursued a practice of general
applicability that is contrary to the law. ",41
Exhaustion may also be excused where the local educational agency
See 20 V.S.c. § 1415(i)(2)(A).
Honig v. Doe, 484 V.S. 305, 327 (1988).
See id. See also Polera v. Board ofEduc. ofNewburgh Enlarged City
Sch. Dist., 288 F.3d 478,489 n.8 (2d Or. 2002).
Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 249 (2d
Cir. 2008) (quoting J.s. ex rei. N.S. v. Attica Cent. Sch., 386 F.3d 107, 114 (2d Qr.
Dean v. School Dist. ofCity ofNiagara Falls, N.Y., 615 F. Supp. 2d
63,71 (W.D.N.Y. 2009) (quoting Mrs. W. v. Tirozzi, 832 F.2d 748,756 (2d Or.
failed to notify parents of their due process rights and thereby "deprived [them] of
the opportunity to take advantage of the procedural safeguards offered by the
statute.,,42 Moreover, lengthy delays in the administrative process may justify a
finding that exhaustion would be futile or inadequate. 43 Although the specific
threshold for such a finding is unclear, lower courts have excused exhaustion in
cases with delays ranging from one month to two years.44
Joinder of Necessary Parties
Failure to join a necessary party in accordance with Rule 19 can be
Weixel v. Board ofEduc. ofN.Y., 287 F.3d 138,147 (2d Cir. 2002)
(quotation marks and citations omitted).
See Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Or.
1991) (noting that "if state administrative bodies persistently fail to render
expeditious decisions as to a child's educational placement, district courts have the
power under § 1415(e)(2) to assume jurisdiction over the review process on the
grounds that exhaustion would be futile or inadequate ...."). See also Mackey ex
rei. Thomas M v. Board of Educ.for Arlington Cent. Sch. Dist., 386 F.3d 158, 162
n.3 (2d Cir. 2004) (noting district court's finding, unchallenged on appeal, that
exhaustion was excused based on SRO delay of almost a year).
See McAdams v. Board ofEduc. ofRocky Point Union Free Sch. Dist.,
216 F. Supp. 2d 86, 95 (E.D.N.Y. 2002) (excusing exhaustion where appeal had
been pending at SRO level for almost two years); Adrian R. a rei. Esther D. v.
New York City Bd. ofEduc., No. 99 Civ. 9064,2001 WL 77066, at *6 n.6
(S.D.N.Y. Jan. 30, 2001) (exhaustion excused where SRO's decision was delayed
by eight months); Sabatini v. Corning-Paintai Post Area Sch. Dist., 78 F. Supp. 2d
138, 140 (W.D.N.Y. 1999) (excusing exhaustion where no decision had been
issued by SRO more than two months after notice of appeal was filed).
grounds for dismissa1. 45 A party is necessary if, "in that person's absence, the
court cannot accord complete relief among existing parties."46 Ifjoinder of a
necessary party is not feasible, the court must "determine whether, in equity and
good conscience, the action should pro reed among the existing parties or should be
Statute of Limitations
Under the IDEA, a parent's due process complaint must be filed
"within 2 years of the date [the parent] knew or should have known about the
alleged action that forms the basis of the complaint.,,48 The two-year statute of
limitations does not apply if the parent was prevented from requesting the hearing
by the local educational agency's misrepresentations, or because the agency
withheld information it was required to provide. 49
The IDEA's statute oflimitations is an affirmative defense rather than
See Fed. R. Civ. P. 12(b)(7).
Fed. R. Civ. P. 19(a)(1)(A).
Fed. R. Civ. P. 19(b).
20 U.S.C. § 1415(f)(3)(C).
See id. § 1415(f)(3)(D).
a jurisdictional prerequisite. 50 As such, it is subject to the doctrine of waiver ifnot
raised at the initial administrative hearing. 51 Where a plaintiff raises equitable
tolling arguments, a motion to dismiss based on the statute of limitations must be
denied unless "all assertions of the complaint, as read with required liberality,
would not permit the plaintiffs to prove that this statute was tolled."52
Exhaustion Is Excused for Plaintiffs' Systemic Claims
In addition to challenging certain aspects of their IEPs, plaintiffs seek
a declaratory judgment that some of the City's policies and practices regarding the
provision of services to autistic children are unlawful. They also seek a permanent
See, e.g., Somoza v. New York City Dep 't ofEduc., 538 F.3d 106, III
(2d Cir. 2008) (calling IDEA's statute oflimitations an affirmative defense); In re
S. Afr. Apartheid Litig., 617 F. Supp. 2d 228,287 (S.D.N.Y. 2009) (,Statute of
limitations defenses are affirmative defenses, which normally cannot be decided on
a motion to dismiss.").
See In re Benedict, 90 F.3d 50, 54 (2d Cir. 1996) (noting that
"[s]tatutory filing deadlines are generally subject to the defenses of waiver,
estoppel, and equitable tolling") (quotation marks and citations omitted); R.B. ex
ret. A.B. v. Department ofEduc. ofCity ofN Y., No. 10 Civ. 6684,2011 WL
4375694, at *5-7 (S.D.N.Y. Sept. 16,2011) (considering IDEA's statute of
limitations to be an affirmative defense and noting that "a party's failure to raise an
argument during administrative proceedings generally results in a waiver of that
argument"). But see S. w: v. New York City Dep 't ofEduc., 646 F. Supp. 2d 346,
361 (S.D.N.Y. 2009) (considering arguments raised by DOE for the first time
before the SRO).
Apartheid, 617 F. Supp. 2d at 287 (quotations and citations omitted).
injunction prohibiting the application of those policies to their children in the
Specifically, plaintiffs allege that: 1) the City refuses to include
certain services on any IEP regardless of the student's needs, and parents can only
obtain such services through due process hearings;54 2) the City automatically
attempts to remove certain services on a yearly basis without consideration for the
student's needs, leaving parents in a continuous cycle oflitigation;55 3) the City
will not fund pendency services prospectively without an order from an IRO,
which disadvantages families that cannot afford to pay for their child's services up
front and request reimbursement later;56 4) the City fails to comply with translation
and language access requirements on a widespread scale;57 5) the City has not
vested IROs with jurisdiction over certain federal claims that are required to be
exhausted under the IDEA;58 6) the City's due process notices are unreasonably
See FAC at 53-56.
difficult to understand;59 7) SRO appeals are excessively delayed;60 and 8) hearing
officers at both levels of review are not impartial because they are hired and
supervised by NYSED. 61
Although IHOs and SROs have the authority to order wide-ranging
relief for individual children in a specific school year, they have no power to alter
the City's policies or general practices and cannot issue prospective relief.
Because plaintiffs have plausibly alleged violations that the administrative process
has "no power to correct," exhaustion would be inadequate or futile. 62 Therefore,
plaintiffs' failure to exhaust their systemic claims is excused.
Exhaustion Is Excused for Y.T. Based on Excessive
Plaintiffs further argue that exhaustion should be excused for Y. T. on
the basis oflengthy administrative delays. Under the applicable federal
regulations, IHOs have forty-five days to issue a final decision, while SROs have
See id. ~'r 364-388.
J.s., 386 F.3d at 113.
thirty.63 Here, the Y.T. plaintiffs filed their notice of appeal on March 25, 2013,64
and the case was fully briefed by July.65 Yet a decision still has not been issued
almost six months later. Plaintiffs have provided evidence that, as of July 2013,
the SRO system had a backlog of over 230 cases, some of which had been pending
for over 300 days.66
Furthermore, I take judicial notice that a proposed class action
settlement agreement is currently before Judge Paul Gardephe of this Court
addressing delays in due process hearings for special needs children. The proposed
settlement provides that IHO decisions will be deemed fully exhausted if the SRO
has not issued a decision within seventy-five days of the parties' final
submission. 67 Although the settlement is not yet binding, it certainly lends support
to plaintiffs' argument that a delay of nearly six months should excuse the
administrative exhaustion requirement. While Y.T. is currently receiving
See 34 C.F.R. § 300.515 (2006).
See FAC ~ 219.
See M.G., 2013 WL 3974165, at *6.
See 7/8/13 Hearing Transcript, UA. v. NYSED, No. 13 Civ. 3077, Dkt.
No. 24 (S.D.N.Y. July 24,2013), Ex. F to 12/3/13 Declaration of Elisa Hyman,
plaintiffs' attorney, at 3, 14.
See Proposed Settlement Agreement ~ IV(5), Ex. A to 1/10/14 Letter
from Assistant Attorney General Michael Klekman, UA. v. NYSED, No. 13 Civ.
3077, Dkt. No. 75 (S.D.N.Y. Jan. 10,2014).
pendency services, his parents allege that those services are insufficient. Under
these circumstances, a delay of more than half the school year in question renders
the administrative process futile or inadequate.
Similarly, Y.T. 's second due process complaint regarding the
2012-2013 and 2013-2014 school years has been pending at the IHO level since
July 3, 2013, and the hearing still has not commenced. 68 For the same reasons
stated above, exhaustion is excused with respect to Y.T. 's second due process
Plaintiffs do not argue that E.H. and D.D. should be excused from
exhaustion based on administrative delay. D.D. prevailed at the IHO level after a
timely hearing process. 70 E.H. requested a due process hearing on July 8,2013 that
is apparently still ongoing six llDnths later. 7 ! While such a delay could potentially
suffice to excuse administrative exhaustion, neither party has provided the court
with infonnation regarding the reason for the delay, and plaintiffs have not pressed
See PI. Mem. at 5.
Because exhaustion is excused for Y.T. on the basis of administrative
delay, I need not address his argument that exhaustion should be excused due to
the City'S alleged failure to provide his parents with due process notices.
See PI. Mem. at 6.
See Def. Mem. at 5.
the point in their briefs. Therefore, D.D.'s and E.H.'s individual claims are
dismissed without pr~udice for failing to exhaust administrative remedies.72
New York State Is a Necessary Party to Certain Claims
Several of plaintiffs' claims implicate state-level procedures. For
instance, plaintiffs allege excessive delays and systemic bias at the SRO level. 73
Because the City has no control over state policies and practices, it can offer no
relief in response to these particular claims. Thus, NYSED is a necessary party
under Rule 19 and must be joined if feasible. Given that neither party has disputed
feasibility, plaintiffs must join NYSED as a defendant or their claims involving
state administrative procedures will be dismissed.
Y.T.'s Claims Are Not Barred by the Statute of Limitations
The City argues that Y.T.'s claims regarding the 2008-2009,
2009-2010, and 2010-2011 school years are barred by the IDEA's two-year
statute of limitations. However, the City raised this issue for the first time on
appeal to the SRO. 74 The City incorrectly contends that the statute oflimitations is
If the E.H. plaintiffs provide more information about the cause of the
delay, I am willing to reconsider this ruling.
See FAC ~~1355-356, 364-388.
See Def. Mem. at 20 n.8.
jurisdictional and thus not subjoct to waiver. 75 However, the weight of authority
indicates that IDEA's statute oflimitations is an affirmative defense. 76 Because the
City did not raise the statute of limitations at the initial due process hearing, the
argument has been waived.
Even if the City is not deemed to have waived the statute of
limitations defense, plaintiffs allege that they did not receive due process notices in
their native language as required by the IDEA.77 Indeed, a local educational
agency's failure to provide necessary information constitutes an exception to the
statute oflimitations.78 Therefore, plaintiffs have plausibly alleged that their
claims are timely, and the City's motion to dismiss Y.T.'s claims for the
and 2010-2011 school years is denied.
For the foregoing reasons, the City's motion to dismiss is granted with
respect to the individual claims of E.H. and D.D. The motion is denied with
See Somoza, 538 F.3d at 111; R.B., 2011 WL 4375694, at *5-7.
See FAC" 23-27; 20 U.S.c. § 1415(b)(3)-(4) (requiring the local
educational agency to provide parents with due process notices in their native
language whenever the agency proposes a change, or refuses a change, in the
child's educational program).
See 20 U.S.C. § 1415(f)(3)(D).
respect to Y.T. as well as the systemic claims asserted by the other plaintiffs.
Plaintiffs are ordered to join the State of New York within thirty (30) days or their
claims challenging state administrative procedures will be dismissed. The Clerk of
the Court is directed to close this motion [Docket Entry No. 25]. A conference is
scheduled for February 20,2014 at 4:30 pm
New York, New York
Elisa F. Hyman, Esq.
Friedman & Moses LLP
233 Broadway, Suite 901
New York, NY 10279
Fax: (212) 608-3280
Andrew James Rauchberg
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, NY 10007
Fax: (212) 788-0940
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