19

- 3 502

- c v G.B., et al. v. Orange Southwest Supervisory District

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
R ULINGS BY SUMMARY ORDER D O NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ' S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WIT H THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

" SUMMARY ORDER " ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL . At a stated term of the United Stat es Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8 th day of December, two thousand twenty

. PRESENT: ROBERT D. SACK, DENNY CHIN, RAYMOND J. LO H IER , JR., Circuit Judges

.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x G.B., A MINOR, BY AND THROUGH HIS PARENTS BY NEXT FRIEND NANCY A. BARBOUR BY NEXT FRIEND CYNTHIA L. NONEMACHER, NANCY A. BARBOUR, PARENT AND NEXT FRIEND TO G. B., A MINOR, CYNTHIA L. NONEMACHER, PARENT AND NEXT FRIEND TO G.B., A MINOR , Plaintiff s - Appellant s ,

- v - 1 9

- 3 5 0 2

- c v2 ORANGE SOUTHWEST SUPERVISORY DISTRICT , Defendant

- Appell ee . ∗

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
FOR PLAINTIFF S

- APPELLANT S : Nancy A. Barbour, The Law Office of Nancy A. Barbour, West Lebanon, New Hampshire

. FOR DEFENDANT

- APPELL EE : Andrew D. Manitsky, Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, Vermont

. Appeal from the United States District Court for th e District of Vermont ( Crawford , Ch. J .).
UP ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff s - a ppellant s G.B. (a minor, by and through his parents Nancy A. Barbour and Cynthia L. Nonemacher), Nancy A. Barbour, and Cynthia L. Nonemacher (collectively, "plaintiffs") appeal the district court ' s judgment entered September 30,
2019 in favor of defendant

- appellee Orange Southwest Supervisory School District ( the

" District ")

. By order also entered September 30, 2019, the district court granted the District's motion to dismiss and for summary judgment and den ied plaintiffs' cross motion for summary judgment , with r espect to plaintiffs' claims under the Individuals with Disabilities Act ( the "IDEA"), 2 0 U.S.C. §§ 1400 et seq. ; the Rehabilitation Act, 29

∗ The Clerk of the Court is respectfully directed to amend the official caption to conform to the above. While there were additional d efendants, Orange Southwest Supervisory District is the only defendant

- appellee.3 U.S.C. § 794; the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. ; and 42 U.S.C. § 1983. We assume the parties ' familiarity with the underlying facts, procedural history of the case, and issues on appeal.
We review de novo the district court 's decision to grant the District 's
motion to dismiss and for summary judgment. J.D. ex rel. J.D. v . Pawlet Sch. Dist. , 224 F.3d 60, 64

- 65 (2d Cir. 2000) ; T.K. v. N .Y.C. Dep't of Educ. , 810 F.3d 869, 87 4 (2d Cir. 2016) . " With respect to state administrative decisions, we engage in an independent, but circumscribed, review, more critical than clear

- error review but well short of complete de novo review. We give due weight to the state proceedings, affording particular deference where the state hearing officers' review has been thorough and
careful ," and we are "m indful that federal courts lack the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy. "
T.K. , 810 F.3d at 875 (internal quotation marks omitted).
Plaintiffs make three arguments on appeal: the independent hearing officer ( the "IHO") and district court erred in finding that (1) certain claims were time

barred, (2) the District complied with its "child find" dut ies , 1 and (3) plaintiffs failed to exhaust their administrative remedies as required for certain claims. We disagree with each argument.

1 Federal and state regulations require the District to identify and evaluate students with disabilities , which is referred to as "child find

. " 34 C.F.R. § 300.11 1 ; V.S.E.R. § 2368.1.1

.4 P laintiffs do not dispute that their child

- find claim related to the District’s failure to timely evaluate G.B. is subject to a two

- year statute of limitations and that their claim for tuition reimbursement is subje ct to a ninety

- day statute of limitations. 2 Rather, plaintiffs argue that the statute of limitations should have been tolle d because they were not provided with "the mandatory notices set forth under IDEA" until September 2017 and t he District's "preplacement evaluation" was ongoing until
December 2017 , meaning the statute of limitations would not start to run until September 2017 at the earliest , and thus their April 2018 due process complaint w as timely

. But plaintiffs did not raise any tolling arguments during the administrative proceedings below , despite being fully aware of the relevant statute s of limitations no
later than November 8 , 2017 , when they filed their first due process complaint

. See
S

. App'x at 133 (noting that their due process c omplaint covered conduct only looking
back "two (2) year s " ). And because plaintiffs did not raise this issue before the IHO,
there i s no administrative record on which we can determine whether plaintiffs
received the statutor il y mandate d noti ce. On this score, p laintiffs' failure to rais e the

2 In plaintiffs' brief, they argue that the d istrict court

-- and presumably the IHO

-- erred in finding plaintiffs' claim that G.B. was denied a free appropriate public education ("FAPE") to be time

- barred. But neither the IHO nor the district court reached the question of whether plaintiffs' FAPE claim w as time

- barred. Rather, plaintiffs' FAPE clai m was dismissed on jurisdictional grounds. It was plaintiffs' claim that the District failed to comply with its child

find obligations that the lower court and IHO found to be time

- barred. Thus, we interpret plaintiffs' statute

- of

- limitations argument to be that the district court and IHO erred regarding the statute of limitations as applied to plaintiff s ' child

- find cla im.5 l ack

- of

- notice argument in the administrative proceedings constitutes waiver

. See C.F.
ex rel. R.F. v. N .Y.C. Dep ' t of Educ. , 746 F.3d 68, 78 (2d Cir. 2014) ("The key to the due process procedures is fair notice and preventing parents from sandbagging the school district by raising [issues] after the expiration of the resolution period." (internal quotation marks and alterations omitted ) ). Further , federal a nd state law provides that certain acts or omissions toll the relevant statute of limitations period, 34 C.F.R. § 511(f); V.S.E.R. § 2365.1.6.1(a)(3), but the regulations do not explicitly provide that an ongoing preplacement evaluation is one of those act s , and plaintiffs have offered no authority suggesting as much

. Accordingly, the IHO did not err in finding plaintiffs' child

- find
and tuition

- reimbursement claims barred by their relevant statutes of limitations, and the district court properly affirmed the IHO's decision on that ground. As to plaintiffs’
second child

- find claim, we agree with the d istrict c ourt that the District ' s evaluation process from March 2016 to April 2017 was comprehensive. It is undisputed that p laintiffs' remaining claims were not raised in any of their previous due process complaints or before any IHO and that plaintiffs' claims are actionable in federal court only after exhaust ing their administrative remedies. See Cave
v. E. Meadow Union Free Sch. Dist. , 514 F.3d 240, 245 (2d Cir. 2008). Plaintiffs, however,
contend that administrative exhaustion was not required here because any such effort
would have be en futile . Specifically, plaintiffs argue: It would be utterly futile to require . . . Parents [to] file a fo urth due process complaint, where (1) the administrative6 record has not been fully developed, (2) witnesses have not testified, (3) experts have not rendered professional opinions concerning the appropriateness of any draft IEP produced by the District, an d (4) where the District has completely frustrated Parents attempt to determine if they could accommodate and program in order to address the seriousness of G.B.’s mental health conditions. Plaintiffs' Brief at 60

- 61. But, as the District notes, plaintiff s' argument shows precisely why they must exhaust their administrative remedies prior to bringing suit in federal court: to develop a record and allow individuals with expertise in education to make
these determinations in the first instance. See Polera v . Bd. of Educ. of Newburgh Enlarged City Sch. Dist. , 288 F.3d 478, 487 (2d Cir. 2002) ("Exhaustion of the administrative process allows for the exercise of discretion and educational expertise by state and local agencies, affords full exploration of techni cal educational issues, furthers development of a complete factual record, and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled
children. " (internal quotation mar ks omitted))

. Further , plaintiffs have failed to show
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 , at
least one of which is required to establish futility

. See Coleman v. Newburgh Enlarged City
Sch. Dist. , 503 F.3d 198, 205 (2d Cir. 2007) . Accordingly, the district court appropriately dismissed plaintiffs' remaining claims for failure to exhaust their administrative
remedies.7 * * *
We have considered plaintiff s ' remaining arguments and conclude they
are without merit. Accordingly, we AFFIRM the judgment of the district court

. FOR THE COURT: Catherine O ' Hagan Wolfe, Clerk