    15-2579
    H.B. v. Byram Hills Central 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 ASUMMARY ORDER@). A PARTY CITING TO 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 6th day of May, two thousand sixteen.

    PRESENT:
                   JOHN M. WALKER, JR.,
                   GUIDO CALABRESI,
                   PETER W. HALL,
                                  Circuit Judges.

    _______________________________________

    H.B., INDIVIDUALLY AND O/B/O B.B., T.B.,
    INDIVIDUALLY AND O/B/O B.B.,

                          Plaintiffs-Appellants,

                   v.                                                          No. 15-2579

    BYRAM HILLS CENTRAL SCHOOL DISTRICT,
    NEW YORK STATE DEPARTMENT OF EDUCATION,
    MARYELLEN ELIA, IN HER REPRESENTATIVE ROLE AS
    COMMISSIONER OF EDUCATION FOR THE NEW YORK
    STATE EDUCATION DEPARTMENT,

                      Defendants-Appellees.*
    _______________________________________


    *
     The Clerk of Court is respectfully directed to amend the official caption to conform to the
    caption above.
For Plaintiffs-Appellants:                            PETER D. HOFFMAN, Law Office of Peter D.
                                                      Hoffman, PC, Katonah, NY.

For Byram Hills Central School District:              ANDREA GREEN, Bond Schoeneck & King
                                                      PLLC, New York, NY.

For State Appellees:                                  MARK H. SHAWHAN, Assistant Solicitor
                                                      General (Anisha S. Dasgupta, Deputy
                                                      Solicitor General, on the brief), for Eric T.
                                                      Schneiderman, Attorney General of the State
                                                      of New York.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Briccetti, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Appellants appeal from a final judgment dismissing their action brought under the

Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We assume the

parties’ familiarity with the underlying facts and the procedural history of this case.

       The IDEA “provides that potential plaintiffs with grievances related to the education of

disabled children generally must exhaust their administrative remedies before filing suit in

federal court.” Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481

(2d Cir. 2002); J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 112 (2d Cir. 2004) (“It is well

settled that the IDEA requires an aggrieved party to exhaust all administrative remedies before

bringing a civil action in federal or state court.”). The exhaustion requirement, however, “does

not apply in situations in which exhaustion would be futile because administrative procedures do

not provide adequate remedies.” Polera, 288 F.3d at 488. In Polera, we observed that “the

exhaustion requirement is predicated on Congress’s belief . . . that the agencies themselves are in

the optimal position to identify and correct their errors and to fine-tune the design of their


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programs.” Id. at 490; see also Heldman v. Sobol, 962 F.2d 148, 159 (2d Cir. 1992) (observing

that the exhaustion requirement “prevents courts from undermining the administrative process

and permits an agency to bring its expertise to bear on a problem as well as to correct its own

mistakes”). Appellants “bear the burden of proof that exhaustion would be futile.” J.S., 386

F.3d at 112.

       Appellants contend that exhaustion was futile because of the significant delays they

experienced awaiting decision from an impartial hearing officer (“IHO”).                While we

acknowledge the lengthy delay, the fact remains that on August 20, 2014, Appellants and the

Byram Hills School District (‘the District”) both agreed to extend the deadline for a decision by

the IHO until October 6, 2014, so that the newly-appointed IHO would have time to review the

record. Only two days after agreeing to this deadline, however, Appellants filed this lawsuit.

While we have acknowledged that exhaustion may be futile if “administrative bodies persistently

fail to render expeditious decisions as to a child’s education placement,” Frutiger v. Hamilton

Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991), as of the date this suit was filed, the wheels had

been set in motion to resolve the delay that had occurred and to render a decision in the coming

weeks. Moreover, the mutually agreed upon October deadline strongly suggested that a decision

was imminent and that exhaustion, at least at that stage of proceedings, was not futile. Indeed,

the IHO rendered a decision on October 15, 2014, less than two weeks after the agreed deadline.

Under these circumstances, we agree with the district court that Appellants did not meet their

burden to show that exhaustion would have been futile. See J.S., 386 F.3d at 112.

       In the proceedings below, Appellants sought declarations that, among other things, the

New York State Education Department and the District did not comply with governing

regulations and that they waived jurisdiction to render a decision. Appellants also requested an


                                                 3
injunction precluding non-lawyer IHOs from hearing cases on whether a student has received a

free appropriate public education. They now challenge the district court’s decisions that they

lacked standing to seek declaratory and injunctive relief. We agree with the district court.

       A plaintiff has the burden of establishing that he has standing to pursue his claims. See

Marcavage v. City of New York, 689 F.3d 98, 103 (2d Cir. 2012) (citing Raines v. Byrd, 521 U.S.

811 (1997)); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (same). “To

obtain prospective relief, such as a declaratory judgment or an injunction, a plaintiff must show,

inter alia, ‘a sufficient likelihood that he [or she] will again be wronged in a similar way.’”

Marcavage, 689 F.3d at 103 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983).

“That is, a plaintiff must demonstrate a certainly impending future injury.”           Id. (internal

quotation marks omitted).

       Appellants have not shown a sufficient likelihood that they will request another hearing

before an IHO and that the IHO will fail to issue a timely decision.1 Indeed, the delay here is

unlikely to recur because it was caused by a unique set of circumstances: an IHO’s medical

condition and the recusal of subsequent IHOs. It also bears noting that the IHO who caused the

initial delay is no longer certified to be an IHO. In sum, Appellants cannot demonstrate a

“certainly impending future injury.” Marcavage, 689 F.3d at 103 (internal quotation marks

omitted). Moreover, the requested declaratory relief is aimed at past conduct, a target that is

impermissible. See Ward v. Thomas, 207 F.3d 114, 120 (2d Cir. 2000) (declaratory relief

unavailable because “[a]ny declaration could say no more than that [the state] had violated

federal law in the past”); Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic



1
  We note that Appellants have since exhausted their administrative remedies and have filed a
new civil action in district court seeking review of the administrative decision at issue. See H.B.
and T.B. v. Byram Hills Cent. School Dist., No. 15-cv-5742 (S.D.N.Y. filed July 22, 2015).
                                                  4
Bishops, 705 F.3d 44, 53 (1st Cir. 2013) (“With limited exceptions, not present here, issuance of

a declaratory judgment deeming past conduct illegal is also not permissible as it would be merely

advisory.”).

       As acknowledged by counsel at oral argument, Appellants’ challenge to the denial of

their request to amend their complaint is moot. The newly filed action in district court asserts the

claims they sought to plead in their amended complaint. See H.B. and T.B., No. 15-cv-5742

(S.D.N.Y. filed July 22, 2015).

       We have considered all of Appellants’ arguments and conclude that they are without

merit. We therefore AFFIRM the judgment of the district court.

                                                     FOR THE COURT:

                                                     Catherine O’Hagan Wolfe, Clerk




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