Rivera-Quinones et al v. Department of Education of Puerto Rico et al

Filing 52

OPINION AND ORDER re 2 Motion for Preliminary Injunction; re 28 Motion to Dismiss for Failure to State a Claim; and re 44 Motion for Summary Judgment. The Court GRANTS defendants' motion to dismiss the wheelchair access claim, (Docket No. 28). The wheelchair access claim, brought pursuant to the IDEA and the ADA, is DISMISSED WITHOUT PREJUDICE. With respect to plaintiffs' transportation reimbursement claim, the Court DENIES defendants' motion to dismiss, (Docket No. 28), and HOLDS IN ABEYANCE plaintiffs' unopposed motions for a preliminary injunction, (Docket No. 2), and for summary judgment, (Docket No. 44). Notice of compliance due May 11, 2015. Signed by Judge Francisco A. Besosa on 05/04/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
WIDALLYS RIVERA-QUIÑONES,
A.V.R. (MINOR),
Plaintiffs,
Civil No. 15-1184 (FAB)

v.
DEPARTMENT OF EDUCATION OF
PUERTO RICO,
COMMONWEALTH OF PUERTO RICO,
Defendants.

OPINION AND ORDER
BESOSA, District Judge.
On

March

3,

2015,

Widallys

Rivera-Quiñones

(“Rivera”)

personally and on behalf of her minor daughter “AVR” (collectively,
“plaintiffs”) brought suit against the Puerto Rico Department of
Education

and

“defendants”).

the

Commonwealth

(Docket No. 1.)

of

Puerto

Rico

(collectively,

Plaintiffs’ claims are two-fold.

First, they allege that defendants’ failure to make various school
facilities and equipment accessible to AVR, who uses a wheelchair,
constitutes

a

violation

of

the

Individuals

with

Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq.

Second,

plaintiffs claim that defendants’ failure to reimburse Ms. Rivera
for transportation costs incurred by driving AVR to school and
therapy sessions constitutes a violation of the IDEA.

Civil No. 15-1184 (FAB)

2

Plaintiffs moved the Court for a preliminary injunction on
both claims.

(Docket No. 2.)

On April 9, 2015, defendants

answered the complaint, (Docket No. 29), and moved to dismiss,
(Docket No. 28).

The Court held a preliminary injunction hearing

on April 10, 2015.

On April 17, 2015, plaintiffs opposed the

motion to dismiss, (Docket No. 42), and moved for summary judgment
on their transportation reimbursement claim, (Docket No. 44).
For the reasons discussed below, the Court GRANTS in part and
DENIES in part defendants’ motion to dismiss, (Docket No. 28).
With respect to plaintiffs’ transportation reimbursement claim, the
Court

HOLDS

IN

ABEYANCE

plaintiffs’

unopposed

motions

for

a

preliminary injunction, (Docket No. 2), and for summary judgment,
(Docket No. 44).

The Court ORDERS defendants to submit to the

Court the cost estimates for building a ramp to the library and for
building ceilings on the ramps at AVR’s school, and to inform the
Court on the status of obtaining funds to execute this building
project, no later than May 11, 2015.

The Court also ORDERS the

parties to notify the Court on the status of the exchange of AVR’s
attendance certifications and transportation reimbursement payments
no later than May 11, 2015.

Civil No. 15-1184 (FAB)

3
I.

A.

BACKGROUND

Factual Allegations1
AVR has been diagnosed with spina bifida, hydrocephalia, and

cerebral palsy, and requires a wheelchair to move from one place to
another.
Rico

(Docket No. 1 ¶ 12.)

Department

of

Education

She is registered with the Puerto
(“PR

DOE”)

as

a

student

with

disabilities and currently attends Mariano Feliú Balseiro School
(“MFB School”).

Id. at ¶¶ 13, 23.

Her mother, Ms. Rivera, drives

AVR to MFB School and to therapy sessions.

Id. at ¶ 24.

MFB School does not have wheelchair access to its library.
(Docket No. 1 at ¶ 26.)
with

her

classmates

who

Therefore, AVR cannot go to the library
are

able

to

walk.

Id.

at

¶

27.

Furthermore, the ramps to the second floor of MFB School and to the
bathroom designated for AVR to use her catheter at school do not
have ceilings, making those places inaccessible to AVR when it
rains.

(Docket No. 39-1 at p. 2.)2

MFB School has an independent living classroom in which,
pursuant to AVR’s Individualized Education Plan (“IEP”), AVR is

1

The Court draws these factual allegations from
complaint, (Docket No. 1), unless otherwise noted.

2

plaintiffs’

Plaintiffs originally alleged in their complaint that there is no
wheelchair access to the second floor, that there is no ceiling on
a ramp that provides access to first floor classrooms, and that the
area designated for AVR to use her catheter does not have a
ceiling. (Docket No. 1 at ¶¶ 26-30.) Plaintiffs corrected these
misstatements at the hearing held on April 10, 2015, and in their
subsequent filing, see Docket No. 39-1 at p. 2.

Civil No. 15-1184 (FAB)

4

supposed to develop skills that will allow her to become as selfsufficient as possible.
skills is cooking.

Id.

(Docket No. 1 at ¶ 31.)

One of these

The cooking equipment, or part of it, in

the independent living classroom, however, is set at a height out
of AVR’s reach, and she is consequently hindered from developing
this skill in class.

Id. at ¶¶ 32-33.

classroom also lacks air conditioning.

The independent living

Id. at ¶ 34. Because AVR’s

wheelchair and the MFB School uniform are black, the heat causes
AVR to develop urinary infections.
B.

Id.

Defendants’ Admissions
In their answer to plaintiffs’ complaint, defendants admit

that AVR suffers from spina bifida, hydrocephalia, and cerebral
palsy, and that she is registered with the PR DOE as a student with
disabilities.

(Docket No. 29 at ¶¶ 3-4.)

Defendants also admit in

their answer that there is no wheelchair access to the library at
AVR’s school and that the ramp to the second floor at her school
has no ceiling.

Id. at ¶¶ 10, 12.

Counsel for defendants conceded in open court at the April 10,
2015, hearing (1) that a cost estimate and blueprints have been
prepared to build a ramp to the library at MFB School; (2) that the
ramp to the library will be built when funding is approved; (3)
that building a ceiling on the ramps that lead to the second floor
and to the area designated for AVR to use her catheter is also
included in the same cost estimate; (4) that some of the cooking

Civil No. 15-1184 (FAB)

5

equipment in the independent living classroom is out of AVR’s
reach; (5) that MFB School will allow AVR to wear non-uniform
clothing to make her more comfortable in the heat; and (6) that MFB
School will add more fans to alleviate the heat in AVR’s classroom.
(Prelim. Inj. Hr’g Tr. at pp. 2-3, 7, 11-13.)
C.

Administrative Proceedings
On

October

complaint

2,

based

2014,

on

plaintiffs

two

filed

claims:

reimbursement and wheelchair access.

an

administrative

transportation

expenses

(Docket No. 50-1 at p. 2.)

Plaintiffs moved to dismiss voluntarily without prejudice the
wheelchair access claim on November 14, 2014.

Id.

The reason for

plaintiffs’ voluntary dismissal of the wheelchair access claim has
not been made known to the Court.

Plaintiffs were represented in

the

by

administrative

proceedings

representing plaintiffs in this action.

the

same

legal

counsel

See id. at p. 1.

On January 30, 2015, the administrative law judge (“ALJ”)
ruled

on

the

transportation

claim.

(Docket

No.

50-1.)

He

concluded that the Special Education Transportation Division of the
PR DOE must follow the Education Secretary’s guidelines, which
indicate that the transportation reimbursement rates for the 20132014 academic year are those established by the Public Service
Commission.

Id. at p. 9.

The ALJ also concluded that the rate of

$0.40 per mile applies to transportation reimbursement for the
2014-2015 academic year.

Id.

The ALJ ordered the PR DOE, “upon

Civil No. 15-1184 (FAB)

6

receiving certifications from Complainant regarding attendance to
school and therapy, and confirm[ing] the same were duly issued by
the Public Service Commission, [to] pay Complainant within thirty
(30) calendar days, what is owed for therapy sessions for the 20132014

school

guidelines.”

year,

by

following

the

Education

Secretary’s

Id. at p. 10.
II.

Defendants

move

WHEELCHAIR ACCESS CLAIM
to

dismiss

plaintiffs’

wheelchair

access

claim, arguing that plaintiffs’ failure to exhaust administrative
remedies for that claim, as required by the IDEA, strips the Court
of subject matter jurisdiction over the claim.

(Docket No. 28 at

pp. 9-12.)
Plaintiffs concede that they did not exhaust administrative
remedies for their wheelchair access claim.

(Docket No. 42 at pp.

2-5.) Plaintiffs argue, however, that they were entitled to bypass
administrative remedies because exhausting those remedies would
have been futile and would have caused irreparable harm to AVR.
Id.

Plaintiffs also contend that their wheelchair access claim,

brought

pursuant

to

both

the

IDEA

and

the

ADA,

can

survive

dismissal by standing on its ADA leg because the ADA has no
exhaustion requirement.

Id. at pp. 7-8.

Plaintiffs finally urge

the Court to find that defendants’ admissions and stipulations at
the April 10, 2015, hearing moot defendants’ request for dismissal.
Id. at p. 2.

Civil No. 15-1184 (FAB)
A.

7

The IDEA’s Exhaustion Requirement
The IDEA is a comprehensive statute enacted by Congress “to

ensure that all children with disabilities have available to them
a

free

appropriate

public

education

that

emphasizes

special

education and related services designed to meet their unique needs
and prepare them for further education, employment, and independent
living.”

20 U.S.C. § 1400(d)(1)(A).

To achieve this objective,

the IDEA requires state educational agencies that receive federal
funds to “establish and maintain procedures . . . to ensure that
children

with

disabilities

and

their

parents

are

guaranteed

procedural safeguards with respect to the provision of a free
appropriate public education.”

Id. § 1415(a).

One of these required procedures is the opportunity for
parents to present complaints related to alleged IDEA violations
affecting their children.

Id. § 1415(b)(6).

A parent who brings

an administrative complaint pursuant to 20 U.S.C. § 1415(b)(6) is
entitled to an impartial due process hearing.

Id. § 1415(f).

Following the completion of this administrative process, the
IDEA affords to “[a]ny party aggrieved by the findings and decision
made” during or pursuant to the due process hearing the right to
“bring a civil action with respect to the complaint presented” at
the hearing “in a district court of the United States, without
regard to the amount in controversy.”

Id. § 1415(i)(2)(A).

Civil No. 15-1184 (FAB)

8

Thus, before filing suit in federal court, the “IDEA mandates
that plaintiffs exhaust administrative remedies through the due
process hearing” detailed in 20 U.S.C. § 1415(f).
214 F.3d 206, 210 (1st Cir. 2000).

Rose v. Yeaw,

“Failure to exhaust the

[IDEA’s] administrative remedies deprives the court of subject
matter jurisdiction.” Cave v. E. Meadow Union Free Sch. Dist., 514
F.3d 240, 245 (2d Cir. 2008); accord Batchelor v. Rose Tree Media
Sch. Dist., 759 F.3d 266, 272 (3d Cir. 2014).
The

exhaustion

rule

serves

several

important

purposes,

including enabling the agency “‘to develop a factual record, to
apply its expertise to the problem, to exercise its discretion, and
to correct its own mistakes.’”

Rose, 214 F.3d at 210 (quoting

Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st
Cir. 1989)).
promoting

accuracy, efficiency,

economy.’”
B.

The exhaustion requirement is also “‘credited with
agency

autonomy,

and

judicial

Id. (quoting Christopher W., 877 F.2d at 1094).

Futility Exception to the IDEA’s Exhaustion Requirement
The IDEA’s exhaustion requirement is not absolute. Frazier v.

Fairhaven Sch. Comm., 276 F.3d 52, 59 (1st Cir. 2002).

Courts

recognize limited exceptions to the exhaustion rule, and “a party
who seeks to invoke an exemption bears the burden of showing that
it applies.”
One

Id.

recognized

exception

is

“where

the

pursuit of

administrative remedies would be futile or inadequate.”

Pihl v.

Civil No. 15-1184 (FAB)

9

Mass. Dep’t of Educ., 9 F.3d 184, 190 (1st Cir. 1993).

“To show

futility, a plaintiff must demonstrate that adequate remedies are
not reasonably available or that the wrongs alleged could not or
would not have been corrected by resort to the administrative
hearing process.”

Coleman v. Newburgh Enlarged City Sch. Dist.,

503 F.3d 198, 205 (2d Cir. 2007) (internal quotation marks and
citations omitted).
Here, plaintiffs urge the Court to find that exhausting
administrative remedies on their wheelchair access claim would have
been futile.

(Docket No. 42 at p. 3.)

They explain “that since

2012, Rivera has been complaining to both the [PR] DOE and the MFB
School about the deficiencies that have resulted in AVR being
deprived of access to the school’s facilities and equipment and
that the [PR] DOE has not corrected these deficiencies.” Id. Even
accepting this allegation as true, PR DOE’s pattern of ignoring
informal complaints does not necessarily mean that lodging a formal
administrative complaint would have been futile.
Plaintiffs next argue futility by alleging that the PR DOE has
exhibited a “pattern of non-compliance with ALJs’ orders.” (Docket
No. 42 at pp. 4-5.)

To support this allegation, plaintiffs point

to two recent cases in which courts in this district have noted
such non-compliance by the PR DOE.

They first cite Colon-Vazquez

v. Dep’t of Educ. of P.R., 46 F. Supp. 3d 132, 136-40 (D.P.R.
2014), in which Judge Fusté noted that the PR DOE did not comply

Civil No. 15-1184 (FAB)

10

with an ALJ order to appoint a special education teacher and to
hold an IEP Team meeting by certain deadlines.
p. 4.)

(Docket No. 42 at

Plaintiffs next cite an unpublished order from Fortes-

Cortes v. Dep’t of Educ., Civil No. 12-1900-GAG, Docket Entry 135,
at *2 (D.P.R. Oct. 15, 2013), in which Judge Gelpí commented that
“in the past [he] has noted a pattern of noncompliance by the [PR]
DOE with final orders issued by [ALJs] . . . [but] the present
administration worked diligently to resolve this case after January
2013.”

(Docket No. 42 at p. 4.)

Plaintiffs are essentially asking the Court to find that the
PR DOE routinely ignores ALJ orders, and that this pattern of
noncompliance renders futile the entire administrative procedure
for IDEA violations in the Commonwealth of Puerto Rico.

The two

cases cited by plaintiffs do not constitute sufficient evidence for
the Court to make this drastic finding.

Thus, plaintiffs have not

met their burden of showing that bringing their wheelchair access
claim before an ALJ would have been futile.
C.

Severe or Irreparable Harm Exception to the IDEA’s Exhaustion
Requirement
A second recognized exception to the exhaustion requirement is

where

pursuing

administrative

remedies

irreparable harm on the litigant.”

would

“work

severe

Pihl, 9 F.3d at 190.

or

This

exception “is consistent with the legislative history, which warns
that exhaustion is not necessary when ‘an emergency situation
exists (e.g., the failure to take immediate action will adversely

Civil No. 15-1184 (FAB)

11

affect a child’s mental or physical health).’”

Rose, 214 F.3d at

211 (quoting Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d
775, 778 (3d Cir. 1994) (quoting H.R. Rep No. 99-296, at 7
(1985))).

The First Circuit Court of Appeals cautions that the

irreparable harm exception “‘is to be sparingly invoked,’” noting
that the Third Circuit has required plaintiffs to provide “‘hard
evidence that the child faces irreversible damage if the relief is
not granted.’”

Id. at 212 (quoting Komninos, 13 F.3d at 779).

Here, plaintiffs argue that exhausting administrative remedies
would have caused irreparable harm to AVR.
3.)

(Docket No. 42 at p.

Plaintiffs contend that not allowing AVR to have wheelchair

access

to

the

library

deprives

her

of

her

right

to

a

free

appropriate public education (“FAPE”) pursuant to the IDEA, and
that it is “settled law” that a “‘failure to provide a FAPE
constitutes irreparable injury.’”

Id. at p. 4 (quoting Lofton v.

District of Columbia, No. CV 13-1959 (RBW), 2013 WL 6710352, at *5
(D.D.C. Dec. 20, 2013) (quoting Massey v. District of Columbia, 400
F. Supp. 2d 66, 75 (D.D.C. 2005))).
Plaintiffs

again

fail

to

meet

their

burden.

First,

plaintiffs’ reliance on Lofton and Massey is misplaced.

Those

cases held that a failure to provide a FAPE constituted irreparable
injury in the context of determining whether the “irreparable
injury” factor of the preliminary injunction test was met.

See

Lofton, 2013 WL 6710352, at *2; Massey, 400 F. Supp. 2d at 74.

The

Civil No. 15-1184 (FAB)

12

“irreparable injury” factor in the preliminary injunction inquiry
is different from the “severe or irreparable harm” exception to the
exhaustion requirement: the latter is found only in “emergency
situations” where the child faces “irreversible damage.” See Rose,
214 F.3d at 211-12.
Second, plaintiffs offer no evidence as to the nature of the
irreparable injury that AVR faces. Rather, they simply allege that
she is being deprived of her right to a FAPE.
4.)

(Docket No. 42 at p.

If that were enough, then the “severe or irreparable harm”

exception would swallow the exhaustion requirement because nearly
all IDEA-based claims allege deprivation of a FAPE.

All parents

alleging that their children are being denied a FAPE would be able
to

use

the

“irreparable

harm”

exception

to

bypass

IDEA’s

administrative process and come straight to federal court.
“would

subvert

not

only

the

very

existence

of

a

This

mandatory

exhaustion requirement but also the overall scheme that Congress
envisioned for dealing with educational disabilities.”

Frazier,

276 F.3d at 63.
The Court thus finds that plaintiffs have not met their burden
of

showing

that

exhausting

administrative

remedies

on

their

wheelchair access claim would have worked severe or irreparable
harm on AVR.

Civil No. 15-1184 (FAB)
D.

13

The IDEA’s Exhaustion Requirement and Plaintiffs’ ADA Claim
Plaintiffs next argue that the IDEA’s exhaustion requirement

does not preclude them from bringing their “separate and discrete”
wheelchair access claim pursuant to the ADA. (Docket No. 42 at pp.
8-9.)

Plaintiffs’ argument is unavailing.

Section 1415(l) of the IDEA reads:
Nothing in [the IDEA] shall be construed to restrict or
limit the rights, procedures, and remedies available
under the Constitution, the [ADA], title V of the
Rehabilitation Act of 1973, or other Federal laws
protecting the rights of children with disabilities,
except that before 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) 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) (emphasis added).

The “procedures under

subsections (f) and (g)” are the due process hearing before the
local or state educational agency and, if conducted by the local
educational agency, then the appeal to the state educational
agency.

Id. § 1415(f)-(g).

Thus, the IDEA is clear that “a

non-IDEA claim that seeks relief also available under the IDEA must
be

exhausted

administratively

through

the

IDEA’s

due

process

hearing procedures before it can be brought in a civil action in
state or federal court.”

D.B. ex rel. Elizabeth B. v. Esposito,

675 F.3d 26, 39 n.5 (1st Cir. 2012); accord Rose, 214 F.3d at 210
(“[The IDEA exhaustion requirement] applies even when the suit is

Civil No. 15-1184 (FAB)

14

brought pursuant to a different statute so long as the party is
seeking relief that is available under subchapter II of IDEA.”).
Here, plaintiffs concede that they did not exhaust the IDEA
administrative remedies on their wheelchair access claim before
filing their ADA claim in this action.

Therefore, the only

question is whether plaintiffs seek relief available under the
IDEA.

On

their

wheelchair

access

claim,

plaintiffs

seek

a

“preliminary injunction ordering defendant to immediately provide
AVR with the access to the needed facilities at the MFB School and
to

the

equipment

to

which

she

is

entitled

as

part

educational services under the IDEA,” among other things.
No. 1 at p. 9.)

of

her

(Docket

The IDEA empowers courts to issue injunctive

relief, see Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 116 (1st
Cir. 2003), and requires states to have procedures for any party to
present a complaint “with respect to any matter relating to the
provision of a free appropriate public education to [the] child,”
20 U.S.C. § 1415(b)(6)(A).

Thus, the relief plaintiffs seek on

their wheelchair access claim is available under the IDEA. Indeed,
by bringing their wheelchair access claim pursuant to both the IDEA
and the ADA, plaintiffs implicitly concede that they seek relief
available under the IDEA.
The Court briefly addresses plaintiffs’ flawed argument to
correct their misunderstanding of the law.

Plaintiffs rely on the

explanation by the First Circuit Court of Appeals in Lebron v.

Civil No. 15-1184 (FAB)
Puerto Rico

that

15

“denying a

child a free

appropriate public

education on account of his disability could, for instance, be a
valid basis for a claim under either the Rehabilitation Act or the
ADA, even if the factual basis for those claims might overlap with
that of an IDEA claim.”

770 F.3d 25, 30-31 (1st Cir. 2014).

This

statement is inapposite for purposes of the current issue because
Lebron

does

not

address

the

IDEA’s

exhaustion

requirement.

Plaintiffs are correct in stating that they are “not precluded from
suing under the ADA and its amendments because AVR is entitled to
su[e] the [PR] DOE for its failure to accommodate her physical
needs and [for] its discrimination of her as a qualified individual
under the ADA,” (Docket No. 42 at p. 8).

But having the right to

bring an ADA suit does not mean plaintiffs need not exhaust IDEA
administrative remedies before exercising that right.
In conclusion, plaintiffs’ argument that their ADA claim based
on

wheelchair

access

should

survive

dismissal

because

it

is

“separate and discrete” from their IDEA claim based on wheelchair
access is unpersuasive.

Because their ADA claim seeks relief

available pursuant to the IDEA, plaintiffs had to invoke IDEA’s due
process hearing procedures for their wheelchair access claim before
filing suit on that claim pursuant to the ADA.
E.

Defendants’ Admissions and Offer to Settle
Plaintiffs finally aver that at the preliminary injunction

hearing, defendants agreed to construct a ramp to the library and

Civil No. 15-1184 (FAB)

16

to build roofs on the ramps that lead to the second floor and to
the room where AVR uses her catheter.

(Docket No. 42 at p. 2.)

Plaintiffs also state that defendants agreed to settle plaintiffs’
wheelchair access claim.

Id.

Plaintiffs argue that because of

these stipulations and settlement offer on the wheelchair access
claim, defendants’ request for dismissal of that claim is moot.
Id.
The Court first clarifies defendants’ statements.

At the

hearing on April 10, 2015, defendants stated that they have a cost
estimate and blueprints to build a ramp to the library, and that
they have a cost estimate to build a roof on the ramps to the
second floor and to the area where AVR uses her catheter. (Prelim.
Inj. Hr’g Tr. at pp. 2-3, 11.)

Defendants indicated that “[a]ll

[they] need is to have the funds approved and [they will] break
ground as soon as [the funds are approved].”

Id. at p. 2.

Defendants also stated that they would be open to resolving the
case “by way of a settlement” without “convert[ing] it [in]to an
injunction.”

Id. at p. 26.

Plaintiffs responded indicating that

they would prefer an injunction.

Id.

Plaintiffs cite no authority that holds that a defendant’s
offer

to

resolve

a

claim

by

way

of

settlement

moots

that

defendant’s motion to dismiss that claim for lack of subject matter

Civil No. 15-1184 (FAB)
jurisdiction.3

17

The Court has found none either, and therefore

finds plaintiffs’ argument unpersuasive.
F.

Conclusion
Plaintiffs

concede

that

they

did

not

exhaust

the

administrative remedies for their wheelchair access claim.

IDEA

Having

found that plaintiffs did not meet their burden of showing that an
exception excused their failure to exhaust IDEA’s administrative
remedies, the Court GRANTS defendants’ motion to dismiss without
prejudice plaintiffs’ IDEA-based wheelchair access claim.

Because

plaintiffs seek relief available pursuant to the IDEA, the Court
GRANTS

defendants’

motion

to

dismiss

plaintiffs’

ADA-based

wheelchair access claim, also without prejudice.
Although the Court must dismiss plaintiffs’ wheelchair access
claim due to the aforementioned procedural defect, it would be a
great injustice for defendants to continue to deny AVR access to
facilities and equipment at her school while she endeavors to
overcome the procedural obstacles required by statute.

This is

especially true in light of defendants’ admission that AVR is being
3

As for cited legal authority, plaintiffs offer only the
proposition that “‘[a] partial settlement moots the issues involved
in the settlement, but not those that the parties did not intend to
settle.’” See Docket No. 42 at p. 2 (quoting Laffey v. Begin, 137
F. App’x 362, 363 (1st Cir. 2005) (quoting 13A Charles Alan Wright,
et al., Federal Practice and Procedure § 3533.2 (2d ed. 1984))).
This proposition is inapplicable here because there is no partial
settlement; defendants have only indicated that they would be open
to a settlement, and plaintiffs responded that they would prefer an
injunction.

Civil No. 15-1184 (FAB)

18

denied access to certain facilities and equipment and considering
the

steps

defendants

have

already

taken

to

ameliorate

these

problems, such as obtaining building cost estimates and blueprints.
Notwithstanding defendants’ concessions and efforts, the Court
would be remiss to ignore the PR DOE’s history of delinquency and
not acting with urgency when it comes to guaranteeing the rights of
special education students.

Accordingly, to avoid unnecessary and

unjust delay for AVR, the Court ORDERS defendants to submit to the
Court the cost estimates for building a ramp to the library and for
building ceilings on the ramps to the second floor and to the room
Additionally, the Court ORDERS

where AVR uses her catheter.

defendants to inform the Court on the status of obtaining funds to
execute this building project.
III.
A.

TRANSPORTATION REIMBURSEMENT CLAIM

Procedural Background
Defendants

moved

to

dismiss

plaintiffs’

claim

for

reimbursement of transportation expenses on April 9, 2015. (Docket
No. 28.)

Defendants argued that the transportation reimbursement

claim was moot, thus depriving the Court of jurisdiction, because
plaintiffs had already been reimbursed.

Id. at p. 12.

Defendants

explained that plaintiffs were issued four checks for reimbursement
of transportation for the 2013-2014 year, totaling $481.40, and
that plaintiffs were to be issued payment for the 2014-2015 at the
preliminary injunction hearing.

Id.

Civil No. 15-1184 (FAB)

19

At the hearing on April 10, 2015, plaintiffs stated that they
did accept a payment from the PR DOE for the 2013-2014 academic
year, but that the amount was less than the amount due.
Inj. Hr’g Tr. at pp. 14, 19-20.)

(Prelim.

The parties also informed the

Court that, on that day, defendants offered plaintiffs two checks,
totaling $1,681.60, for transportation expenses incurred AugustDecember 2014, and that plaintiffs accepted those checks with a
reservation.

Id. at pp. 21-23.

Because there was apparent

confusion about how to calculate the amount owed to plaintiffs, the
Court ordered both parties to file simultaneous memoranda as to the
transportation reimbursement issue by April 17, 2015.

See Docket

No. 30 at p. 2.
Plaintiffs complied with that order by filing a memorandum in
the form of a motion for summary judgment on the transportation
reimbursement claim.

(Docket No. 44.)

Plaintiffs calculate that

the total amount of transportation reimbursement for the 2013-2014
academic year is $3,768.20.

Id. at p. 6.

Plaintiffs contend that

they do not understand how to calculate the reimbursement for the
2014-2015 academic year, so they are “not in a position to know
whether the checks that were given to them during the April 10,
2015 hearing are correct.”

Id. at p. 7.

Defendants did not file a memorandum on the transportation
issue by the April 17th deadline, ignoring the Court’s order.
Consequently,

the

Court

ordered

defendants

to

respond

to

Civil No. 15-1184 (FAB)

20

plaintiffs’ motion for partial summary judgment by April 21, 2015.
(Docket

No.

48.)

Defendants

complied

informative motion on April 21, 2015.

by

filing

a

two-page

(Docket No. 49.)

In their

informative motion, defendants state that they “are currently in
the process of issuing Plaintiffs’ payment” and that “[p]ayment for
transportation expenses is being worked on and will be shortly
issued.”

Id. at ¶¶ 7-8.

Defendants also assure the Court that

they “will formally brief the Court on [their] position regarding
this matter.”
B.

Id. at ¶ 6.

Motion to Dismiss
From defendants’ most recent concession that “[p]ayment for

transportation expenses is being worked on and will be shortly
issued,” (Docket No. 49 at ¶ 8), it is evident that defendants have
abandoned their original contention that plaintiffs were fully
reimbursed, see Docket No. 28 at p. 12.

Because this contention

was defendants’ sole argument in moving to dismiss plaintiffs’
transportation reimbursement claim, the Court DENIES defendants’
motion to dismiss that claim.
C.

“Party Aggrieved”
Before

preliminary

ruling

on

junction

plaintiffs’
and

for

unopposed

summary

motions

judgment

on

for

a

their

transportation reimbursement claim, the Court questions whether
plaintiffs had the right to bring this suit in the first place.
The IDEA affords the right to bring suit in federal court only to

Civil No. 15-1184 (FAB)

21

a “party aggrieved” by the findings and decision made pursuant to
the administrative due process hearing. 20 U.S.C. § 1415(i)(2)(A).
Parties “who are aggrieved by the school system’s failure to appeal
from and to comply with the hearing officer’s continuing, valid,
and final order” are “parties aggrieved” for purposes of the IDEA.
Nieves-Marquez, 353 F.3d at 116. Here, plaintiffs assert that they
are a “party aggrieved” because defendants have not complied with
the ALJ’s order.

(Docket No. 1 at ¶¶ 40-42.)

Specifically,

plaintiffs claim that the thirty-day period ordered by the ALJ for
defendants to pay plaintiffs has elapsed and full payment has not
been received.

Id.

In their complaint, in their motion for summary judgment, and
in their statement of uncontested material facts, plaintiffs seem
to state, or at least imply, that the thirty-day period commenced
when the ALJ issued his ruling on January 30, 2015.4

The ALJ

actually ordered the thirty-day period to commence upon defendants’
receipt

of

certifications

from

attendance to school and therapy.

4

plaintiffs

regarding

AVR’s

(Docket No. 50-1 at p. 10.)

See Docket No. 1 at ¶ 40 (“On January 30, 2015, the [ALJ] issued
his ruling regarding [plaintiffs’] complaint and ordered the [PR]
DOE to pay for all pending transportation expenses corresponding to
the 2013-2014 and 2014-2015 academic years, within a term of thirty
days.”); Docket No. 44 at p. 4 (“The ALJ issued his Ruling on
January 30, 2015[,] and clearly ordered that the [PR] DOE had to
make the pending payments within the term of thirty (30) days.”);
Docket No 45 at ¶ 16 (“The ALJ ordered the [PR] DOE to make the
pending payment for transportation expenses within the term of
thirty (30) days.”).

Civil No. 15-1184 (FAB)

22

This order is material because if plaintiffs never gave defendants
AVR’s attendance records, or if they gave defendants the records
less

than

thirty

days

ago,

the

plaintiffs

are

not

a

“party

aggrieved” entitled to bring suit.
On April 17, 2015, plaintiffs submitted to the Court the
following certifications regarding AVR’s attendance:
C

School, August 2013 - May 2014, dated April 14, 2014,5
(Docket No. 45-4);

C

Therapy, August 2013 - June 2014, dated March 26, 2015,
(Docket No. 45-5);

C

Therapy, August-December 2014, dated April 16, 2015,
(Docket No. 45-6).6

Plaintiffs have not informed the Court if and when these
certifications

were

given

to

defendants,

thus

triggering

thirty-day period for defendants to issue payment.
Court

HOLDS

preliminary

IN

ABEYANCE

injunction

plaintiffs’
and

for

unopposed

summary

the

As such, the

motions

judgment

on

for

a

their

transportation reimbursement claim.
IV.

CONCLUSION

For the reasons explained above, the Court GRANTS defendants’
motion to dismiss the wheelchair access claim, (Docket No. 28).

5

The date of April 14, 2014, is an obvious error because the
attendance certification includes the dates that AVR was absent in
May 2014.
6

Plaintiffs did not submit an attendance certification from AVR’s
school for August-December 2014.

Civil No. 15-1184 (FAB)

23

The wheelchair access claim, brought pursuant to the IDEA and the
ADA, is DISMISSED WITHOUT PREJUDICE.
With

respect

to

plaintiffs’

transportation

reimbursement

claim, the Court DENIES defendants’ motion to dismiss, (Docket
No. 28), and HOLDS IN ABEYANCE plaintiffs’ unopposed motions for a
preliminary injunction, (Docket No. 2), and for summary judgment,
(Docket No. 44).
The Court ORDERS defendants to submit to the Court the cost
estimates for building a ramp to the library and for building
ceilings on the ramps at AVR’s school, and to inform the Court on
the status of obtaining funds to execute this building project, no
later than May 11, 2015.

The Court also ORDERS the parties to

notify the Court as to the status of the exchange of AVR’s
attendance certifications and transportation reimbursement payments
no later than May 11, 2015.
IT IS SO ORDERED.
San Juan, Puerto Rico, May 4, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE