United States District Court, Middle District of Pennsylvania
July 23, 2001
FRANK FALZETT AND BRANDE FALZETT, INDIVIDUALLY AND AS PARENTS AND NATURAL GUARDIANS OF TIBER FALZETT, A MINOR, PLAINTIFFS,
THE POCONO MOUNTAIN SCHOOL DISTRICT, DEFENDANT.
The opinion of the court was delivered by: Judge Caputo
This case arose after Tiber Falzett contracted Giardiasis from surface
water parasites in early 1998 and was forced to receive home bound
schooling during the spring of his seventh grade year and the whole of
his eighth grade year. (Am. Compl., Doc. 8 ¶ 7-9.) After
unsuccessfully negotiating with the defendant school district regarding
Tiber's individualized education program ("IEP"), the Falzetts placed
Tiber in a private school and brought the instant action for tuition
reimbursement and compensatory damages. The complaint invokes the
Individuals with Disabilities Education Act ("IDEA"), the Rehabilitation
Act, the Americans with Disabilities Act ("ADA"), various Pennsylvania
regulations, and 42 U.S.C. § 1983. (Id.) Presently before the court
is the school district's motion to dismiss under Rule 12(b)(6) for
failure to exhaust administrative
remedies.*fn1 This motion requires the
court to decide whether an IDEA plaintiff must exhaust his administrative
remedies prior to bringing suit where the plaintiff seeks both tuition
reimbursement, a remedy that is available through the administrative
process, and monetary damages, a remedy that is not. Because the court
concludes that such a plaintiff must exhaust the available administrative
procedures, and because the court further concludes that the exhaustion
requirement is not excused by the parties' irreconcilable differences,
the school district's motion to dismiss will be granted.
The school district brought the present motion to dismiss for failure
to exhaust administrative remedies under Federal Rule of Civil Procedure
12(b)(6). However, as exhaustion of administrative remedies is
jurisdictional in the IDEA context, see W.B. v. Matula, 67 F.3d 484, 493
(3d Cir. 1995), the court will treat the motion to dismiss as one brought
pursuant to Rule 12(b)(1), which provides for the dismissal of a complaint
where the court lacks subject matter jurisdiction.*fn2
Unlike dismissal under Federal Rule of Civil Procedure Rule 12(b)(6),
dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction is
not a judgment on the merits of the plaintiff's case, but only a
determination that the court lacks the authority to hear the case.
Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir.
1977). A Rule 12(b)(1) motion may be treated either as a facial or a
factual challenge to the court's subject matter jurisdiction. Gould
Elecs. Inc., v. United States, 220 F.3d 169, 178 (3d Cir. 2000). If the
motion is treated as a facial attack, the court may consider only the
allegations contained in the complaint and the exhibits attached to the
complaint; matters of public record such as court records, letter
decisions of government agencies and published reports of administrative
bodies; and "undisputably authentic" documents which the plaintiff has
identified as a basis of his claims and which the defendant has attached
as exhibits to his motion to dismiss. Hunter v. United States, 2000 WL
1880257, *3 (M.D.Pa.). See generally Pension Benefit Guar. Corp. v. White
Consol. Indus. Inc., 998 F.2d 1192, 1196-97 (3d Cir. 1993).
On the other hand, if the defendant submits and the court considers
evidence that controverts the plaintiff's allegations, the court must
treat the motion as a factual challenge under Rule 12(b)(1). Gould, 220
F.3d at 178. In such cases, "the trial court is free to weigh evidence
and satisfy itself as to the existence of its power to hear the case."
Mortensen, 549 F.2d at 891. No presumption of truthfulness attaches to
the allegations in the plaintiff's complaint, and the burden of proof is
on the plaintiff to show that the court possesses jurisdiction. Id.
However, the plaintiff must be permitted to respond to the defendant's
evidence with evidence supporting jurisdiction. Id. In the present
matter, the court
will consider only the allegations in the Falzetts'
amended complaint, treating the school district's motion to dismiss as a
facial attack on subject matter jurisdiction.
The Individuals with Disabilities Education Act guarantees handicapped
children a "free appropriate public education" by providing the states
with incentives to adopt the Act's comprehensive scheme of procedural
safeguards. See 20 U.S.C. § 1400 et seq.; Komninos v. Upper Saddle
River Bd. of Educ., 13 F.3d 775 (3d Cir. 1994). Chief among these
safeguards are the right to a due process hearing before an independent
administrative officer, see 20 U.S.C. § 1415(b)(2), and the right to
institute a civil action after receiving an adverse decision on the
administrative level, see 20 U.S.C. § 1415(i)(2). However, the IDEA
requires that a plaintiff exhaust his administrative remedies under the
Act before filing a civil action seeking relief that is "also available"
under the IDEA. 20 U.S.C. § 1415(l).*fn3 Such an exhaustion
enables the agency to develop a factual record, to
apply its expertise to the problem, to exercise its
discretion, and to correct its own mistakes, and is
credited with promoting accuracy, efficiency, agency
autonomy, and judicial economy. See McKart v. United
States, 395 U.S. 185, 194, 23 L.Ed.2d 194, 89 S.Ct.
Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir.
Although the Falzetts requested a due process hearing pursuant to 22
Pa. Code § 14.64(a), it appears that the Falzetts declined to go
forward with the hearing due to their dissatisfaction with the school
district's conduct during the course of the parties' settlement
negotiations. (Doc. 8 ¶¶ 25-34; Brief, Doc. 13 at 3.) In any
Falzetts do not dispute that they have failed to exhaust their
administrative remedies prior to bringing suit. (Doc. 13 at 3.) Rather,
they argue that their failure to exhaust is excused as futile. See Honig
v. Doe, 484 U.S. 305, 326-27, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)
(excusing the exhaustion requirement where administrative proceedings
would be futile).
The Falzetts point to the parties' failed settlement negotiations
— in particular to the school district's failure to consummate a
settlement agreement — as evidence that administrative proceedings
would be futile. (Doc. 13 at *3.) However, an atmosphere of animosity
between the parties, even where accompanied by dilatory tactics on the
part of the defendant, does not make the plaintiff's administrative
remedies futile. See Kuszewski v. Chippewa Valley Sch., 51 F. Supp.2d 812,
815 (E.D.Mich. 1999). Even the defendant's refusal to participate in the
due process hearing does not make the administrative process futile. See
Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000). In such circumstances,
the plaintiff can and should proceed with the due process hearing
The Falzetts have not alleged that the school district withdrew from
the scheduled due process hearing. They simply argue that the course of
negotiations between the parties indicates that no mutually satisfactory
resolution is possible. According to the Falzetts,
[i]t is obvious that a result such as the one
negotiated by the Plaintiffs [but rejected by
Defendant] would be unsatisfactory to the Defendant. A
result of less than that which the Plaintiffs
bargained for will likewise be an unsatisfactory and
inadequate [sic] to the Plaintiffs. As such, and as
permitted, the exhaustion of administrative remedies
under the IDEA should be dismissed.
(Doc. 13 at 3.) But the Falzetts have cited no authority for the
proposition that the impossibility of reaching a mutually satisfactory
resolution to the dispute makes the administrative process futile. In the
ordinary course of things a due process hearing will be required only
where the parties are unable to resolve the dispute on their own, and
will often produce a result unsatisfactory to one or both of the
parties. Nevertheless, such hearings are capable of resolving some or all
of the issues in an IDEA dispute, even if the outcome is completely
satisfactory to neither party. The inveterate differences of the parties
to an IDEA dispute are simply not enough to make it futile for the
plaintiff to pursue his administrative remedies. See Association for
Retarded Citizens of Ala. v. Teague, 830 F.2d 158
, 162 (11th Cir. 1987)
(the plaintiff's belief that administrative proceedings would be
"incapable of resolving the issues" does not make exhaustion futile).
Consequently the Falzetts have failed to make factual allegations which,
if proved, would establish that they have satisfied or are excused from
satisfying the IDEA's exhaustion requirement. See Honig, 484 U.S. at
327, 108 S.Ct. at 606 (the plaintiff bears the burden of establishing
Ordinarily this would suffice to resolve the pending motion to
dismiss. But the court is troubled by the question of whether §
1415(l) applies to plaintiffs, such as those here, who seek monetary
damages or other relief unavailable through IDEA administrative
proceedings.*fn4 The rule that an IDEA plaintiff
need not exhaust where
the administrative proceedings would be incapable of awarding him the
relief he seeks has been analyzed under the futility exception to the
exhaustion doctrine. See, e.g., BD v. DeBuono, 130 F. Supp.2d 401, 428
(S.D.N.Y. 2000). The issue usually arises, as it does here, where an
action seeking to vindicate a handicapped child's right to a free,
appropriate public education includes a claim for monetary damages, a
remedy not available through the IDEA administrative process. The
majority view among the courts is that such a plaintiff must exhaust the
available administrative processes despite the fact that he cannot be
awarded damages at the administrative level. Id. (collecting cases).
See, e.g., Charlie F. v. Bd. of Educ., 98 F.3d 989, 991-93 (7th Cir.
Deviating somewhat from the majority rule, the Third Circuit has
declined to require plaintiffs seeking only compensatory damages to
exhaust the available administrative processes. See W.B. v. Matula,
67 F.3d 484 (3d Cir. 1995). The W.B. court noted that the plain language
of § 1415(l) requires exhaustion only before the filing of a civil
action seeking relief "also available" under the IDEA. Id. at 496. Since
the court determined that damages were not available in IDEA
administrative proceedings, it held that the plaintiffs' damages action
was not subject to the exhaustion requirement. Id.
This, however, was not the entirety of the W.B. court's analysis. Two
additional considerations were central to the court's holding. First, the
parties in W.B. had participated in an extended series of administrative
proceedings including four IDEA due process hearings which resulted in the
development of an extensive factual record. Thus one of the principal
reasons for the exhaustion requirement — to allow the
administrative body with the relevant expertise to create an evidentiary
record prior to judicial review — did not apply in W.B. Id.
Second, all issues in W.B. other than the damages issue had been resolved
by prior administrative proceedings. With only a monetary damages claim
remaining, the plaintiffs in W.B. could gain nothing from an IDEA
administrative proceeding in which damages could not be awarded. Id.
Given the presence of a robust administrative record and the fact that
the plaintiffs could gain nothing from recourse to yet another due
process hearing, the W.B. court had little difficulty in dispensing with
the exhaustion requirement.
These two considerations, particularly the latter, distinguish the
present case from W.B. In the first place, there have been no
administrative proceedings in this matter, and as a result there is no
detailed administrative record before the court. Unlike in W.B., the
substantive issue of what sort of IEP is appropriate for Tiber remains
unresolved. In such circumstances the court would do well to allow state
officials with expertise in the education of handicapped children to
conduct factfinding before the court takes up the dispute. As the Sixth
Circuit has observed:
To allow parents to come directly to federal courts
will render the entire scheme of [the IDEA] nugatory.
Federal courts, which are generalists with no
expertise in the educational needs of handicapped
children, are given the benefit
of expert fact finding
by a state agency devoted to this very purpose.
Crocker v. Tennessee Secondary Sch. Athletic Ass'n, 873 F.2d 933, 935
(6th Cir. 1989).
Even more critically, it is not the case that the Falzetts are only
seeking a remedy that is unavailable through the administrative process.
While the Falzetts do seek compensatory damages, they also seek tuition
reimbursement, a form of relief which is available through a state due
process hearing. See N.S. v. Commonwealth, 875 F. Supp. 273, 276 (E.D.Pa.
1995) ("[a]n administrative hearing officer is fully empowered to grant
tuition reimbursement, and the administrative hearing is a proper forum
to resolve financial liability for the child's private educational
program"); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78 (3d Cir. 1996)
(reviewing grant of tuition reimbursement by a Pennsylvania special
education appeals panel); Michael C. v. Radnor Township Sch. Dist.,
202 F.3d 642 (3d Cir. 2000) (reviewing an administrative denial of
tuition reimbursement); Warren G. v. Cumberland County Sch. Dist.,
190 F.3d 80 (3d Cir. 1999) (same); Robert M. v. Hickok, 1999 WL 371645
(E.D.Pa.) (same). Consequently it is not the case that the Falzetts have
nothing at all to gain from the administrative process. For all the
aforementioned reasons, then, W.B. is distinguishable from the present
The fact that the Falzetts are seeking tuition reimbursement means
that, unlike the plaintiffs in W.B., the Falzetts are clearly "seeking
relief that is also available" under the IDEA. 20 U.S.C. § 1415(l).
Under these circumstances the conclusion is inescapable that the Falzetts
must exhaust the available administrative procedures before bringing suit
in this court.
The court recognizes that W.B. could be understood to require the
dismissal of the Falzetts' tuition reimbursement claim but not their
damages claim. Under this reading of W.B., the exhaustion requirement
should be excused as to unavailable remedies but not as to available
ones. However, reading W.B. to espouse a remedy-by-remedy exhaustion
analysis would be inconsistent with the exhaustion doctrine's purpose of
ensuring that judicial decisions are rendered in light of administrative
factfinding, an explicit concern of the W.B. court, as it would permit
IDEA plaintiffs to bring their damages claims to federal court prior to
administrative consideration of their other claims. It would also clash
with the doctrine's purpose of avoiding the judicial inefficiency
involved in resolving disputes in piecemeal fashion.
Moreover, the plain language of § 1415(l) states that exhaustion of
IDEA administrative "procedures" is required "before the filing of a
civil action." 20 U.S.C. § 1415(l). Notably, the statute does not say
that each remedy sought must be exhausted before that remedy is pursued
in court, but that IDEA administrative procedures must be exhausted
before a civil action is filed to vindicate the educational rights of a
handicapped child. This language precludes any interpretation of W.B. and
§ 1415(l) under which exhaustion is judged with respect to each
individual remedy sought by the plaintiff, accord Booth v. Churner, ___
U.S. ___, 121 S.Ct. 1819, 1824, ___ L.ED.2d __ (May 29, 2001) ("[i]t
makes no sense to demand that someone exhaust `such administrative
[redress]' as is available; one `exhausts' processes, not forms of
relief"), and implies that the entire action must be dismissed for lack
of subject matter jurisdiction whenever any part of the dispute might be
resolved at the administrative level, see Thorp v. Kepoo,
100 F. Supp.2d 1258, 1263 (D.Haw. 2000) ("Use of the term `action' in the
[exhaustion provision] suggests that the entire case is not ripe until
of the suit that may be exhausted have been.").
The court is tempted to conclude that recourse to IDEA administrative
procedures is required prior to the filing of a civil action seeking to
vindicate the educational rights of a handicapped child whenever those
administrative procedures are capable of providing relief to the
plaintiff.*fn5 Such a reading of § 1415(l) comports with the plain
meaning of the statutory language as well as with the purposes of the
exhaustion doctrine. It is also consistent with W.B., which excused
exhaustion where the plaintiffs could receive no relief whatsoever
through the available administrative processes. 67 F.3d at 496. It is
likewise supported by the Supreme Court's recent Booth decision holding
that a prisoner seeking only monetary damages must exhaust the
administrative process even where damages are unavailable, so long as
that process is capable of providing the prisoner some relief. Booth, 121
S.Ct. at 1824.
However, the court need not go so far to decide this case. It is enough
to conclude that recourse to IDEA administrative procedures is required
prior to the filing of an action seeking to vindicate the educational
rights of a handicapped child where the complaint seeks relief that is
available through the administrative process.*fn6 As the Falzetts have
failed to exhaust the available administrative procedures prior to filing
a civil action seeking, inter alia, tuition reimbursement, the Falzetts'
entire action must be dismissed pursuant to 20 U.S.C. § 1415(l).
The allegations in the amended complaint, even if proved, cannot
establish that the Falzetts have exhausted their administrative remedies
as required by 20 U.S.C. § 1415(l). Further, the court concludes that
exhaustion is not excused by the fact that the Falzetts seek monetary
damages, a remedy that is not available through the administrative
process, where they also seek tuition reimbursement, a remedy that is.
Finally, the Falzetts' argument that exhaustion is excused by the fact
that there exists no mutually agreeable resolution of the parties'
dispute is incorrect as a matter of law.
The amended complaint will be dismissed without prejudice for lack of
subject matter jurisdiction. An appropriate order will follow.
NOW, this 23rd day of July, 2001, IT IS HEREBY ORDERED that:
1. Defendant's motion to dismiss (Doc. 12) Plaintiffs'
amended complaint for failure to exhaust
administrative remedies is GRANTED;
2. Plaintiff's amended complaint (Doc. 8) is DISMISSED
without prejudice for lack of subject matter
3. The Clerk of Court is directed to close this case.