E.M. v. Lewisville Independent School District
MEMORANDUM OPINION AND ORDER re 15 MOTION to Dismiss Part of Plaintiff's Second Amended Original Complaint filed by Lewisville Independent School District. Plaintiff's appeal of the Special Education Hearing Officer's second decision dated August 21, 2015, is hereby DISMISSED for lack of subject matter jurisdiction. Signed by Judge Amos L. Mazzant, III on 1/9/17. (cm, )
United States District Court
EASTERN DISTRICT OF TEXAS
E. M., A MINOR; S.M., NEXT FRIEND;
AND C.S., NEXT FRIEND
LEWISVILLE INDEPENDENT SCHOOL
Civil Action No. 4:15-CV-00564
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Lewisville Independent School District’s Motion
for Partial Dismissal of Plaintiff’s Second Amended Original Complaint (Dkt. #15). Having
considered the relevant pleadings, the Court finds that the motion should be granted.
Plaintiff E.M. (“Plaintiff”) is a student with a disability who resided within the Lewisville
Independent School District (“LISD”). On April 14, 2014, Plaintiff filed a special education due
process hearing request (the “first due process hearing”) with the Texas Education Agency
pursuant to the Individuals with Disabilities Education Improvement Act (“IDEA”). The first
due process hearing was held before a Special Education Hearing Officer (“Hearing Officer”) in
March 2015. On May 22, 2015, the Hearing Officer issued a decision finding that the LISD
provided Plaintiff a free appropriate public education as required by the IDEA. On August 20,
2015, Plaintiff filed a complaint with the Court appealing the Hearing Officer’s decision.
While the first due process hearing was pending, Plaintiff filed a second special education
due process hearing request (the “second due process hearing”) on March 26, 2015. On August
21, 2015, the Hearing Officer dismissed the second due process hearing request, holding that the
first due process hearing barred the second due process hearing by collateral estoppel, res
judicata, and preclusion. On August 30, 2015, Plaintiff filed a Motion for Reconsideration of the
Order of Dismissal. The Hearing Officer did not respond to the Motion for Reconsideration. On
December 10, 2015, Plaintiff filed an Amended Original Complaint with the Court appealing the
dismissal of the second due process hearing request (Dkt. #2). Plaintiff filed a Second Amended
Original Complaint on May 13, 2016 (Dkt. #14). The LISD filed the pending Motion to Dismiss
Part of Plaintiff’s Second Amended Original Complaint on May 27, 2016 (Dkt. #15). Plaintiff
filed a response on June 24, 2016 (Dkt. #21). The LISD replied on July 1, 2016 (Dkt. #22). On
July 11, 2016, Plaintiff filed a sur-reply (Dkt. #23).
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a case for lack of subject
matter jurisdiction when the district court lacks statutory and constitutional power to adjudicate
the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998). If a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court
will consider the jurisdictional challenge under Rule 12(b)(1) before addressing any challenge on
the legal merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
In deciding the motion, the Court may consider “(1) the complaint alone; (2) the
complaint supplemented by the undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the [C]ourt’s resolution of disputed facts.” Lane v.
Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996)). The Court will accept as true all well-pleaded allegations set
forth in the complaint and construe those allegations in the light most favorable to the plaintiff.
Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). Once a defendant files a motion to
dismiss under Rule 12(b)(1) and challenges jurisdiction, the party invoking jurisdiction has the
burden to establish subject matter jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d
507, 511 (5th Cir. 1980). The Court will grant a motion to dismiss for lack of subject matter
jurisdiction only if it appears certain that the claimant cannot prove a plausible set of facts to
support a claim that would entitle it to relief. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.
The LISD moves for partial dismissal of Plaintiff’s Second Amended Original Complaint
for lack of subject matter jurisdiction. The LISD argues that the IDEA ninety-day statute of
limitations bars Plaintiff’s appeal of the second due process hearing. Plaintiff, on the other hand,
contends that the statutory time limit in the IDEA is not a subject-matter jurisdictional bar, but a
statute of limitations that Defendant failed to assert as an affirmative defense. This argument is
The Fifth Circuit has not ruled whether the statute of limitations in the IDEA is
jurisdictional. However, the Court has previously held that the ninety-day filing period is
mandatory and jurisdictional. C.B. v. Argyle Indep. Sch. Dist., No. 4:11CV619, 2012 WL
695834, at *3 (E.D. Tex. Feb. 7, 2012), report and recommendation adopted, No. 4:11CV619,
2012 WL 695833 (E.D. Tex. Mar. 1, 2012). The plain language of the IDEA provides that any
party aggrieved by the findings and decision of a due process hearing brought pursuant to the
IDEA “shall have the right to bring a civil action with respect to the complaint presented
pursuant to this section, which action may be brought in any State court of competent jurisdiction
or in a district court of the United States, without regard to the amount in controversy.” 20
U.S.C. § 1415(i)(2)(A). However, “[t]he party bringing the action shall have 90 days from the
date of the decision of the Hearing Officer to bring such an action, or, if the State has an explicit
time limitation for bringing such action under this subchapter, in such time as the State law
allows.” 20 U.S.C. § 1415(i)(2)(B). Texas follows the ninety-day time frame contemplated in
20 U.S.C. § 1415(i)(2)(B). See 19 Tex. Admin. Code § 89.1185(o) (Tex. Dep’t Educ., Hearing).
Here, the Hearing Officer issued the second due process hearing decision on August 21,
2015. Plaintiff filed her Amended Original Complaint appealing the August 21, 2015 decision
on December 10, 2015. Plaintiff’s appeal of the second due process hearing was thus not
brought ninety days from the date of the decision of the hearing officer as required by the IDEA.
Plaintiff next argues that the Texas Administrative Code and Texas Rules of Civil
Procedure allow for a motion for reconsideration, which would toll the time period required to
file a timely notice of appeal. However, nothing in the Texas Administrative Code allows for a
motion for reconsideration of a hearing officer’s decision.
On the contrary, Texas
Administrative Code Section 89.1185(n) provides that “the decision issued by the hearing officer
is final, except that any party aggrieved by the findings and decision made by the hearing officer,
or the performance thereof by any other party, may bring a civil action with respect to the issues
presented at the hearing in any state court of competent jurisdiction or in a district court of the
United States.” 19 Tex. Admin. Code § 89.1185. Texas Rule of Civil Procedure 329b allows for
a motion for a new trial and motions to modify, correct, or reform judgments. Tex. R. Civ. P.
329b. However, even if Plaintiff’s motion for reconsideration is considered a Rule 329b motion,
the timeline for appeal is only tolled if a judgment is modified, corrected or reformed. Tex. R.
Civ. P. 329b(h). Here, the Hearing Officer did not modify, correct or reform its judgment.
Plaintiff’s appeal of the second due process hearing was therefore untimely filed and is timebarred.
It is therefore ORDERED that Defendant Lewisville Independent School District’s
Motion for Partial Dismissal of Plaintiff’s Second Amended Original Complaint (Dkt. #15) is
hereby GRANTED and Plaintiff's appeal of the Special Education Hearing Officer's second
decision dated August 21, 2015, is hereby DISMISSED for lack of subject matter jurisdiction.
SIGNED this 9th day of January, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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