16-2591-cv
C.E. v. Chappaqua Cent. Sch. Dist.


                                     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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States 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 14th day of June, two thousand seventeen.
PRESENT:
                 BARRINGTON D. PARKER,
                 RICHARD C. WESLEY,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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C.E., Individually, and as Parents of D.E., a minor under
the age of 18 years, J.E., Individually, and as Parents of
D.E., a minor under the age of 18 years,
                                 Plaintiffs-Counter-
                                 Defendants- Appellants,

                                v.                                          No. 16-2591-cv

CHAPPAQUA CENTRAL SCHOOL DISTRICT,
                     Defendant-Counter-
                     Claimant-Appellee,

NEW YORK STATE EDUCATION DEPARTMENT
                                 Defendant.
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 FOR PLAINTIFFS-COUNTER-                                  PETER D. HOFFMAN, Law Office of Peter
 DEFENDANTS-APPELLANTS:                                   D. Hoffman, P.C., Katonah, NY.


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 FOR DEFENDANT-COUNTER-                            MARK C. RUSHFIELD, Shaw,
 CLAIMANT-APPELLEE:                                Perelson, May & Lambert LLP,
                                                   Poughkeepsie, NY.

      Appeal from a June 29, 2016, judgment of the United States District Court for the
Southern District of New York (Román, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Appellants, C.E. and J.E. (“the Parents”), parents of minor child D.E., brought this
appeal following the district court’s denial of their motion for summary judgment, which
effectively affirmed decisions by a State of New York Impartial Hearing Officer (“IHO”)
and State Review Officer (“SRO”) concluding that the Parents were not entitled to
reimbursement under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C.
§§ 1400 et seq., for two school years when they placed D.E. in a private school after
removing him from the Appellee, Chappaqua Central School District (“the School
District”). We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.

              1. Subject Matter Jurisdiction

       There are two issues regarding subject matter jurisdiction in this case. The first
relates to our subject matter jurisdiction following the denial of the Parents’ motion for
summary judgment, while the second relates to the nature of the SRO’s decision.

                     a. The District Court’s Denial of Summary Judgment

        First is the issue of whether we have subject matter jurisdiction to review the
substantive issues following the district court’s decision denying the Parents’ motion for
summary judgment. “Ordinarily, orders denying summary judgment do not qualify as
final decisions subject to appeal.” McColley v. Cty. of Rensselaer, 740 F.3d 817, 822 (2d
Cir. 2014) (internal quotation marks omitted). The denial of summary judgment in this
case is not a denial that leaves further proceedings to be conducted, however. The district
court issued a thorough opinion addressing the merits of the Parents’ claims. The court
concluded “that the 2011-2012 and 2012-2013 [Individualized Education Plans (“IEPs”)]
were both procedurally and substantively adequate, and that the services offered by the
[School] District were appropriate.” The court then instructed the clerk of court to “close
the case,” and the clerk entered a judgment closing the case the following day. The
district court’s decision thus had the effect of denying the Parents’ appeal to that court, and

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a final judgment was entered immediately thereafter. We have reviewed IDEA appeals to
this Court under similar circumstances. See Walczak v. Fla. Union Free Sch. Dist., 142
F.3d 119, 121 (2d Cir. 1998) (issuing decision in IDEA appeal to this Court where district
court denied summary judgment and then entered judgment against moving party).

       We therefore conclude that we have subject matter jurisdiction over the Parents’
appeal to this Court. See 28 U.S.C. § 1291.

                     b. The SRO’s Dismissal on Procedural Grounds

       The School District moved before the district court for judgment on the pleadings,
asserting that the court lacked subject matter jurisdiction because the SRO dismissed the
Parents’ appeal because they failed to comply with the page limit and font size
requirements of New York state regulations applicable to the SRO’s review and therefore
did not exhaust their administrative remedies. The district court denied that motion. The
court distinguished several district court decisions holding that a party’s failure to timely
appeal to an SRO resulted in a party failing to exhaust its administrative remedies. The
court also relied on the fact that the SRO here had “extensively addressed the merits” of the
Parents’ claims after noting the procedural failings. J.A. 858. The School District now
renews its challenge to the district court’s subject matter jurisdiction.

       “In reviewing a district court’s determination of whether it has subject matter
jurisdiction, we review factual findings for clear error and legal conclusions de novo.”
AmBase Corp. v. United States, 731 F.3d 109, 117 (2d Cir. 2013) (emphasis added).

        Notwithstanding the SRO’s statement that he was dismissing the Parents’ appeal
because they failed to comply with regulations governing the font size and page limitations
of submissions to SROs, the SRO did not dismiss the appeal on that basis but instead
rendered a final decision on the merits of the Parents’ claims. We therefore agree with the
district court that the Parents “exhausted all administrative remedies, as required by the
IDEA, before seeking judicial relief,” J.A. 859, and that it had subject matter jurisdiction to
address the merits of their claim. Cf. Polera v. Bd. Of Educ. of Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002) (explaining the purpose of the exhaustion
requirement as allowing the agency “to bring its expertise to bear on a problem” and
conduct a “full exploration of technical educational issues”). Furthermore, because the
Parents exhausted their administrative remedies in this case, we have no need to decide
what procedural deficiencies may result in a party failing to satisfy the IDEA’s exhaustion
requirement. See B.C. ex rel. B.M. v. Pine Plains Cent. Sch. Dist., 971 F. Supp. 2d 356,
365 (S.D.N.Y. 2013) (collecting cases).


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               2. Standard of Review

       Before turning to the merits of the Parents’ appeal, we note that the “role of the
federal courts in reviewing state educational decisions under the IDEA is circumscribed.”
C.F. ex rel. R.F. v. N.Y. City Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014). “The
standard of review requires a more critical appraisal of the agency determination than
clear-error review but nevertheless falls well short of complete de novo review. The
deference owed depends on both the quality of the opinion and the court’s institutional
competence.” Id. (internal citation and quotation marks omitted).

               3. Bias & Competence

       The Parents first argue that the IHO’s decision should not be afforded deference
because he was (1) biased because he had previously been a school superintendent and (2)
incompetent because (a) he was not an attorney and (b) he fell asleep during portions of the
hearing.
                    a. Bias

        The district court did not err by concluding that the IHO was not biased because of
his long-ago-completed service as a school superintendent in school districts that are not
parties in this action. “Absent any evidence casting doubt on the impartiality of the local
or the state review officers who . . . examine[d] [the Parents’] claims, we cannot presume
that they would be biased.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 249
(2d Cir. 2008). The IHO complied with the relevant state regulations intended to prevent
biased hearing officers from conducting such hearings. N.Y. Comp. Codes R. & Regs. tit.
8, § 200.1(x) (“No individual employed by a school district . . . may serve as an impartial
hearing officer and no individual employed by such schools . . . may serve as an impartial
hearing officer for two years following the termination of such employment . . . .”). The
Parents’ contention that the IHO’s rulings during the hearing were “solely” in favor of the
School District, moreover, is clearly refuted by the record. The IHO conducted himself
appropriately during the hearing, and evidence he was biased is lacking.

                      b. Competence

         The IHO was also competent to preside over the hearing although not an attorney.
The New York regulations “grandfathered” him status as an IHO even though he was not a
lawyer because he was an IHO prior to September 1, 2001. N.Y. Comp. Codes R. & Regs.
tit. 8, § 200.1(x) (“An impartial hearing officer shall . . . be an individual admitted to the
practice of law in the State of New York . . . or be an individual certified by the State . . . as

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an impartial hearing officer on September 1, 2001 . . . .”). Further, the IHO also brought
decades of experience as a hearing officer to the bench.

        With regard to the Parents’ assertion that the IHO was sleeping during portions of
the hearing, the IHO provided an explanation for why the Parents might mistakenly think
that, and our review of the portions of the record cited by the Parents confirms the district
court’s conclusion that the IHO was instead awake and attentive. The IHO spoke
frequently, often asking questions of witnesses, ruling on objections, and addressing the
admission of evidence.

                 4. The 2011 Behavior Intervention Plan

       The Parents’ final challenge—and their only substantive one—is to the decisions of
the IHO, SRO, and district court with respect to the School District’s 2011 Behavior
Intervention Plan (“BIP”).1 The Parents argue that the School District could not have
implemented or updated the 2011 BIP in time to create a required, timely IEP in the
following school year based on their past experience with the School District. The
Parents also assert that the 2011 BIP was the product of a flawed process. We find no
error.

       First, the IHO, SRO, and district court all properly rejected the Parents’ argument
that the School District would not have adhered to and properly implemented or updated
the 2011 BIP and the IEP for the forthcoming school year because that argument was
speculative. The Parents’ argument was premised on their contention that the School
District had a “pattern and practice” of failing to develop and implement Functional
Behavioral Assessments2 and BIPs in a timely fashion. Appellant’s Br. 48. However,
although the Parents assert that the 2011 BIP was developed late and then only partially
implemented at the end of the 2010-2011 school year, the record establishes that the 2011
BIP was actually developed for the following school year, the 2011-2012 year, thereby
suggesting that it was developed in a timely fashion and partially implemented early.

       Furthermore, we have previously explained that “it is speculative to conclude that a
school with the capacity to implement a given student’s IEP will simply fail to adhere to
that plan’s mandates . . . .” M.O. v. N.Y.C. Dep’t of Educ., 793 F.3d 236, 244 (2d Cir.
1
 According to the School District’s expert, a BIP seeks to “prevent the reoccurrence of behavior, to respond or
manage behavior when it does occur,” and to “teach appropriate alternative or replacement skills.” J.A. 1511.
2
  A Functional Behavioral Assessment is a process in which educators seek to “determine the functions that a
behavior is serving for” a student, “with the intent of . . . reinforcing or maintaining consequences around the
behavior.” J.A. 1510.


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2015). Although the Parents frame their arguments as an attack on the School District’s
“capacity” to implement or update the 2011 BIP if needed, we conclude that their argument
is best construed as a claim that the School District would not have followed through on its
commitment to implement and update the BIP, not that it “lack[ed] the services required”
to do so. Id. A School District official testified that the District was ready to update the
BIP if needed, and that testimony is supported by documentary evidence. This is not a
situation where a school district plainly lacks the ability to offer the services it says it will
offer. Cf. id. (providing, as example of argument that is not speculative and therefore
permissible, situation in which an IEP recommends “one-on-one occupational therapy,
outside of the classroom,” but a school only offers “in-class occupational therapy in a
group setting”).

        Second, we are not persuaded by the Parents’ challenges to the process by which the
2011 BIP was created, or their argument that the district court failed to credit the testimony
of their witnesses. “District courts are not to make subjective credibility assessments, and
cannot choose between the views of conflicting experts on controversial issues of
educational policy in direct contradiction of the opinions of state administrative officers
who had heard the same evidence.” M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 240 (2d
Cir. 2012) (alterations and internal quotation marks omitted). Considered individually
and cumulatively, the procedural claims the Parents make do not succeed. See R.E. v.
N.Y.C. Dep’t of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (explaining that procedural
violations only entitle parents to reimbursement if they (1) impede a child’s right to a free
appropriate public education; (2) significantly impede “the parents’ opportunity to
participate in the decisionmaking process;” or (3) cause “a deprivation of educational
benefits”). The 2011 BIP was regarded as appropriate by one of the Parents’ expert
witnesses, Dr. Tarnell, as long as the BIP was implemented properly. Moreover, the
adequacy of the resulting BIP essentially came down to a credibility determination
between the School District’s witnesses and the Parents’ witnesses. The district court
properly decided to not reverse the IHO’s decision to credit the former over the latter. See
M.H., 685 F.3d at 240. We likewise decline to reject the district court’s conclusion
affirming the IHO’s credibility determination.

      We have considered the Parents’ remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                     FOR THE COURT:
                                     Catherine O’Hagan Wolfe, Clerk of Court




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