                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 19-2199


               TOWNSHIP OF MARLBORO BOARD OF EDUCATION,
                               Appellant

                                              v.

                                H.L.; J.L., on behalf of V.L.


                     On Appeal from the United States District Court
                             for the District of New Jersey
                                   (No. 3-18-cv-12053)
                         District Judge: Hon. Michael A. Shipp


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  November 22, 2019

             Before: CHAGARES, MATEY, and FUENTES, Circuit Judges

                           (Opinion filed: December 17, 2019)


                                         OPINION*


MATEY, Circuit Judge.

       H.L. and J.L. removed their daughter V.L. from public school, enrolled her in a

private institute, and petitioned for tuition reimbursement from the Marlboro Township




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does
not constitute binding precedent.
Board of Education under the Individuals with Disabilities Education Act (“IDEA”). The

Board refused, arguing that the parents failed to participate in a mandatory resolution

session. After the state administrative law judge (“ALJ”) declined to dismiss on that

ground, the Board sought review in federal court. The District Court, however, dismissed

for lack of jurisdiction. We find no error and will affirm.

                                     I. BACKGROUND

       V.L., a special education student, attended public schools in Marlboro Township,

New Jersey. For the 2015-2016 school year, her parents transferred her to a private school.

They then petitioned the New Jersey Department of Education for a “due process hearing,”

seeking, inter alia, reimbursement for V.L.’s private school tuition.1 In response, the Board

invited the parents to attend a resolution session before the formal hearing, but the parents

declined.

       The matter proceeded before a state ALJ, and the Board moved for summary

decision. The ALJ granted that motion, holding that the parents failed to provide timely

notice to the Board and unreasonably enrolled V.L. in the private school, and thus had no

right to reimbursement.2 The parents challenged that decision in federal court. The District


       1
         Under the IDEA, states receiving federal educational funding must provide special
education students a “free appropriate public education.” 20 U.S.C. § 1412(a)(1)(A). If the
student’s parents believe a public school is not satisfying this requirement, the parents may
unilaterally remove the child from the public school, place her in a private school, and seek
reimbursement for the child’s tuition by petitioning for a “due process hearing” before the
relevant state agency. Id. §§ 1412(a)(10)(C)(ii); 1415(f)(1)(A).
       2
         See 20 U.S.C. § 1412(a)(10)(C)(iii) (stating that “[t]he cost of reimbursement . . .
may be reduced or denied” if, among other things, the parents did not give written notice
ten business days before removing the child from the public school, or “upon a judicial
finding of unreasonableness with respect to the actions taken by the parents”).
                                              2
Court agreed that the parents failed to provide timely notice before moving V.L. But the

court held the ALJ erroneously treated that failure as dispositive, without considering the

totality of the circumstances.3 The District Court also held that the ALJ insufficiently

explained his finding of unreasonableness. It therefore remanded.

       On remand, the Board renewed its motion for summary decision, arguing that the

parents’ failure to participate in the resolution session required dismissal.4 The ALJ denied

that motion, stating that there was a “material fact in dispute” about “the extent, if any, of

[the parents’] participation in the IEP process.” (App. at 5.) The Board immediately

challenged that decision in a new federal lawsuit. The District Court dismissed the case for

lack of jurisdiction, holding that the Board failed to exhaust its administrative remedies.

This appeal followed.5

     II. THE BOARD DID NOT EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES

       The IDEA provides for federal judicial review of state agencies’ decisions on due

process petitions. 20 U.S.C. § 1415(i)(2)(A). A party must first exhaust any available



       3
          See Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (“[C]ourts retain
discretion to reduce the amount of a reimbursement award if the equities so warrant—for
instance, if the parents failed to give the school district adequate notice of their intent to
enroll the child in private school.”) (emphasis added).
        4
          See 20 U.S.C. § 1415(f)(1)(B)(i) (noting that, before a due process hearing, the
school “shall convene a meeting with the parents” unless the parties waive the meeting or
participate in mediation); 34 C.F.R. § 300.510(b)(4) (noting that, if the school “is unable
to obtain the participation of the parent in the resolution meeting after reasonable efforts
have been made,” the school “may . . . request that a hearing officer dismiss the parent’s
due process complaint”).
        5
          Because the order dismissing the action was a “final decision” of the District Court,
we have jurisdiction under 28 U.S.C. § 1291. Our review of that order is plenary. See
Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 271 (3d Cir. 2014).
                                              3
administrative remedies unless: “(1) exhaustion would be futile or inadequate; (2) the issue

presented is purely a legal question; (3) the administrative agency cannot grant relief; [or]

(4) exhaustion would cause severe or irreparable harm.” D.E. v. Cent. Dauphin Sch. Dist.,

765 F.3d 260, 275 (3d Cir. 2014).

       The Board first argues that, merely by moving for summary decision, it has

exhausted its available administrative remedies. We disagree. No authority prevents the

Board from continuing to argue to the ALJ that the parents’ petition should be dismissed

for their failure to participate in the resolution session. In fact, the ALJ appears to be

expecting that argument. (See App. at 5 (denying the Board’s motion because “[a] plenary

hearing is required to establish” the “material fact in dispute” about “the extent, if any, of

[the parents’] participation in the IEP process”).)6

       The Board then argues that one of the exceptions to exhaustion should apply. Again,

we disagree. As noted, the ALJ is ready and able to entertain the Board’s arguments, so

further proceedings would not be futile or inadequate, and may in fact resolve in the

Board’s favor.7 The ALJ recognized that the extent of the parents’ participation is a



       6
         The Board argues that the parents’ participation in the IEP process is irrelevant to
measuring the parents’ participation in the resolution session. In other words, the Board
believes that the ALJ ignored its main argument when denying the motion for summary
decision, and that the ALJ is therefore not prepared to consider that argument further. But
the resolution session was offered to address the parents’ complaints about the preparation
and execution of V.L.’s IEP at Marlboro Township public schools. It was thus part of “the
IEP process.”
       7
         The Board asserts that the IDEA forbids the ALJ from holding a hearing on this
issue. But while the IDEA prohibits “the party requesting the due process hearing” (here,
the parents) from raising new issues at that hearing, 20 U.S.C. § 1415(f)(3)(B), it says
nothing about what issues and defenses the other party (here, the Board), may raise there.
                                              4
question of fact, not law. And the Board does not explain why participation in further

agency proceedings would cause any severe or irreparable harm.8

       The Board, then, has failed to exhaust its administrative remedies, and cannot rely

on any of the exceptions to the exhaustion requirement.

                                     III. CONCLUSION

       The District Court properly dismissed the Board’s complaint for lack of jurisdiction.

We will therefore affirm.9




       8
          The Board also asserts that this Court “has exercised jurisdiction over sufficiency
determinations of ALJs that by their very nature are made prior to the ALJ conducting
plenary proceedings.” (Appellant’s Br. at 14.) But the unreported decision it cites was
reviewing the dismissal of a due process petition for legal insufficiency, with no indication
the petitioner had any further administrative remedies available. D.F. v. Collingswood
Borough Bd. of Educ., 596 F. App’x 49 (3d Cir. 2015). By contrast, the ALJ here made it
clear that its refusal to dismiss the parents’ petition is without prejudice.
        9
          Based on this disposition, we need not—and therefore do not—decide whether the
parents’ failure to participate in a resolution session requires dismissal of their petition
under 20 U.S.C. § 1415(f)(1)(B) or 34 C.F.R. § 300.510(b)(4). But see C.H. v. Cape
Henlopen Sch. Dist., 606 F.3d 59, 72 (3d Cir. 2010) (“[T]he IDEA specifically obligates
the parents to participate in a resolution session with the school district after a due process
request is filed[.] . . . The IDEA was not intended to fund private school tuition for the
children of parents who have not first given the public school a good faith opportunity to
meet its obligations.”).
                                              5
