     13-2182-cv
     B.M. v. New York City Dep’t of Educ.,


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
     ANY PARTY NOT REPRESENTED BY COUNSEL.

 1         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   18th day of June, two thousand fourteen.
 4
 5   Present:
 6                      ROBERT D. SACK,
 7                      DEBRA ANN LIVINGSTON,
 8                      RAYMOND J. LOHIER, JR.,
 9
10                     Circuit Judges.
11   _____________________________________
12
13   B.M., INDIVIDUALLY   AND ON BEHALF OF              E.M.,   A
14   CHILD WITH A DISABILITY,
15
16                               Plaintiff-Appellant,
17
18                      v.                                                       13-2182-cv
19
20   NEW YORK CITY DEPARTMENT OF EDUCATION,
21
22                     Defendant-Appellee.*
23   _____________________________________
24
25   For Plaintiff-Appellant:                                       PHILIP B. ABRAMOWITZ, Cuddy Law Firm,
26                                                                  P.C., Auburn, New York
27
28   For Defendant-Appellee:                                        MICHAEL J. PASTOR (Kristin M. Helmers and

     *
         The Clerk of Court is directed to amend the caption to conform to the listing above.
 1                                                         Brian J. Reimels, on the brief), of Counsel, for
 2                                                         Zachary Carter, Corporation Counsel of the
 3                                                         City of New York, New York, New York
 4
 5          Appeal from a judgment of the United States District Court for the Southern District of New

 6   York (Furman, J.).

 7          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 8   DECREED that the judgment of the district court is AFFIRMED.

 9          Plaintiff B.M. appeals an award of summary judgment in favor of the New York City

10   Department of Education (the “District”), which B.M. alleges failed to provide her son E.M. with

11   a free and appropriate public education (“FAPE”) in violation of the Individuals with Disabilities

12   Education Act (the “IDEA”), 20 U.S.C. § 1400 et seq. “We review de novo a district court’s award

13   of summary judgment in an IDEA case.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546

14   F.3d 111, 118 (2d Cir. 2008). We also assume the parties’ familiarity with the facts and the record

15   of prior proceedings, which we reference only as necessary to explain our decision.

16          The IDEA provides states with funds to ensure that “all children with disabilities” receive

17   a FAPE. Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). A state receiving

18   these funds must then create an individualized education plan (“IEP”) for each qualifying student,

19   tailored to that child’s abilities and needs, see 20 U.S.C. § 1414(d), which is “reasonably calculated

20   to enable the child to receive educational benefits,” Bd. of Educ. v. Rowley, 458 U.S. 176, 207

21   (1982). If a parent believes that her child’s IEP or the school’s implementation of the IEP does not

22   comply with the IDEA, the parent may file a “due process complaint” with the appropriate state

23   agency. See 20 U.S.C. § 1415(b)(6). Districts are then permitted a thirty-day “resolution period”

24   to address alleged deficiencies without penalty. See id. § 1415(f)(1)(B). In light of the resolution


                                                       2
 1   period, a parent must assert all alleged deficiencies in the due process complaint lest a claimant be

 2   permitted to “sandbag” school districts at a later stage in the proceeding. See R.E. v. N.Y.C. Dep’t

 3   of Educ., 694 F.3d 167, 187-88 & n.4 (2d Cir. 2012), cert. denied, 133 S. Ct. 2802 (2013). Once the

 4   resolution period has run, a parent may continue to a due process hearing before an independent

 5   hearing officer (“IHO”) and appeal the resulting decision to a state review officer (“SRO”). See 20

 6   U.S.C. § 1415(f); N.Y. Educ. Law § 4404(2). Only after the state administrative process is

 7   exhausted may either party bring a civil action in state or federal court to challenge the SRO’s

 8   decision. See 20 U.S.C. § 1415(f)-(g), (i).

 9          On appeal, B.M. primarily asserts that E.M.’s teacher’s lack of special education certification

10   denied E.M. a FAPE, and that the district court erred in determining that it lacked jurisdiction over

11   this claim due to B.M.’s failure to include the claim in her due process complaint. We have

12   repeatedly held that the “[f]ailure to exhaust the [IDEA’s] administrative remedies deprives the court

13   of subject matter jurisdiction.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d

14   Cir. 2008) (citing Polera v. Bd. of Educ. of Newburgh, 288 F.3d 478, 483 (2d Cir. 2002)). In support

15   of her claim, B.M. argues that we must abandon this precedent in light of Supreme Court decisions

16   clarifying the nature of jurisdictional bars. See, e.g., Gonzalez v. Thaler, 132 S.Ct. 641, 648 (2012)

17   (directing that courts interpret statutory requirements to be jurisdictional only where “the

18   [l]egislature clearly states that a threshold limitation on a statute’s scope shall count as

19   jurisdictional,” whereas if “Congress does not rank a statutory limitation on coverage as

20   jurisdictional, courts should treat the restriction as nonjurisdictional” (internal quotation marks

21   omitted)). We conclude, however, that the issue need not be decided here. The District has

22   challenged B.M.’s failure to exhaust from its first opportunity, mooting the determination whether


                                                       3
 1   the exhaustion requirement is jurisdictional or operates as an affirmative (and, here, successful)

 2   defense.

 3          B.M. argues to the contrary that she raised the certification issue in her complaint, thus

 4   exhausting the claim, and that the District “opened the door” to her claim. However, none of the

 5   nine detailed claims in B.M.’s due process complaint can be interpreted to encompass special

 6   education certification, and the District’s only mention of the relevant teacher’s qualifications at the

 7   hearing came during foundational questions, not in support of an affirmative, substantive argument.

 8   See M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 250 (2d Cir. 2012) (applying “opening the door”

 9   exception to exhaustion when the district made an affirmative argument in its opening statement and

10   through its first witness, and the parents countered the argument in rebuttal). B.M. also argues that

11   the issue of teacher certification is excused from the exhaustion requirement because it concerns the

12   “implementation” of E.M.’s IEP and not its content. See Polera, 288 F.3d at 488-89. However,

13   B.M. did not raise this argument before the district court, and it is therefore waived.

14          Finally, B.M. asserts several procedural challenges that were raised in her due process

15   complaint. However, B.M. offers no reason to depart from the IHO’s finding that these claims were

16   “substantially resolved” during the resolution period, when the District was permitted to resolve

17   B.M.’s complaint without penalty. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 113

18   (2d Cir. 2007) (instructing courts to give “due weight” to state IDEA proceedings). Moreover, at

19   oral argument, B.M. stated that the only relief she sought was a remand to the IHO for a

20   determination whether E.M. is entitled to corrective services. Because the IHO has already

21   determined that E.M. is not entitled to corrective services on the basis of these claims, we also deem

22   these claims to be moot and rightly dismissed.

23


                                                        4
1          We have considered all of B.M.’s remaining arguments and find them to be without merit.

2   Accordingly, we AFFIRM the district court’s grant of summary judgment in favor of the District.

3

4
5                                              FOR THE COURT:
6                                              Catherine O’Hagan Wolfe, Clerk
7
8
9




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