A.S. by and through his parents Leonel S. and Jennifer S. -vs Catawba County Board of Education

Filing 16

ORDER ordering that Court intends to proceed with hrg on 5/12/2011 as scheduled consistent with applicable law and subject to following parameters. 1) Court will begin with threshold question of subject matter jurisdiction; 2) Second Circuit's analysis in Cave v. East Meadow is instructive, particularly w/ respect to application of exhaustion provision w/i the Individuals with Disabilities Education Act; 3) The "severe harm" exception to the IDEA's exh austion of admin remedies requirement, appears to be pivotal to the jurisdictional question and will likely overlap with plf's proffer in support of request for prelim injunctive relief; and 4) Plf bears the burden of establishing that subject matter jurisdiction exists. Signed by District Judge Richard Voorhees on 5/10/2011. (cbb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL DOCKET NO. 5:11CV27-V
A.S., by and through his parents,
LEONEL S. and JENNIFER S.,
Plaintiff,

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v.
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CATAWBA COUNTY BOARD OF
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EDUCATION,
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Defendant.
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___________________________________ )

ORDER

THIS MATTER is before the Court on its own motion in light of Defendant’s Motion To
Dismiss, filed May 3, 2011, and for purposes of providing the parties certain guidance concerning
how the Court will proceed with the hearing noticed for Thursday, May 12, 2011, at 9:30 a.m. in
the Stateville Division.
The May 12th hearing was originally scheduled to address Plaintiff’s Motion For Preliminary
Injunction. (Documents ##3, 4) However, Defendant’s recently filed Motion To Dismiss, which is
not fully briefed as of yet, formally challenges the existence of subject matter jurisdiction over
Plaintiff’s Complaint alleging unlawful discrimination based upon disability as prohibited by
Section 504 of the Rehabilitation Act of 1973 (“Section 504"), 29 U.S.C. §794(a), and Title II of the
Americans with Disabilities Act of 1990 (“the ADA”), 42 U.S.C. §12132, et seq., and their
regulations. (Documents ##14,15) While not formally supported by a separate motion and
memorandum of law prior to May 3, 2011, the question of subject matter jurisdiction was raised
previously in Defendant’s Response In Opposition to Plaintiff’s Motion For Preliminary Injunction.
(Document #12) Accordingly, the Court intends to proceed with the hearing Thursday, May 12,
2011, as scheduled consistent with the applicable law and subject to the following parameters.

IT IS, THEREFORE, ORDERED THAT:
1) The Court will begin with the threshold question of subject matter jurisdiction;
2) The Second Circuit’s analysis in Cave v. East Meadow Union Free School District1 is
instructive, particularly with respect to the application of the exhaustion provision within the
Individuals with Disabilities Education Act (the “IDEA”), 20 U.S.C. §1400, et seq.;
3) The “severe harm” exception to the IDEA’s exhaustion of administrative remedies
requirement, 20 U.S.C. §1415(l), appears to be pivotal to the jurisdictional question, and will
likely overlap with Plaintiff’s proffer in support of the request for preliminary injunctive
relief; and
4) Plaintiff bears the burden of establishing that subject matter jurisdiction exists.

Signed: May 10, 2011

1

Cave v. East Meadow Union Free School District, 514 F.3d 240 (2nd Cir.2008).
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