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E.G. v. Anchorage Independent Public Schools

United States District Court, W.D. Kentucky, Louisville Division

October 10, 2017



          Thomas B. Russell, Senior Judge

         This matter is before the Court on Defendant Anchorage Independent Public Schools' motion to dismiss, [DN 22.] Plaintiff responded, [DN 27], and Defendant replied, [DN 28.] Fully briefed, this matter is ripe for adjudication. For the following reasons, Defendant's motion to dismiss, [DN 22], is GRANTED. The Court will enter a separate Order and Judgment consistent with this Memorandum Opinion.


         Plaintiff E.G., a minor child (“Plaintiff” or “E.G.”), brings this action through his parents and next friends, A.G. and J.G. pursuant to the Individuals with Disabilities Education Act (“IDEA”) appealing the administrative Decision and Final Order of a panel of the Exceptional Children Appeals Board (“ECAB”). [DN 6 (Amended Complaint).] E.G. “has been diagnosed with autism, which affects his ability to learn and function in a school setting.” [Id. at 3.] As such, pursuant to the IDEA, he “is eligible for specially designed instruction and related services to be provided by Anchorage” Independent Public Schools (“Anchorage”), the local educational agency (“LEA”) responsible for E.G.'s education [Id.] E.G. attended Anchorage through his eighth grade year, during which time Anchorage and E.G.'s parents worked together “to develop an effective individual educational plan (“IEP”).” [Id. at 4.]

         Anchorage does not offer education beyond the eighth grade, however. As such, “[a]t the conclusion of eighth grade, Anchorage contracts with neighboring districts to provide educational services to its students.” [Id.] For the 2015-2016 school year, Anchorage contracted with Jefferson County Public Schools (“JCPS”) to provide education for E.G. [Id.; DN 22 at 2.] JCPS held an Admissions and Release Committee (“ARC”) Meeting on July 28, 2015 to devise an IEP for E.G.'s high school education. [DN 6 at 4; DN 22 at 2.] After that meeting, E.G.'s mother discovered that JCPS had failed to rely on E.G.'s most recent IEP from Anchorage in forming his new IEP. In other words, JCPS relied on an out-of-date IEP. In its administrative appeal decision, the ECAB found that although “Anchorage informed the parents on August 18, 2015 “that JCPS had agreed to hold an[other] ARC to correct the error . . . the parents indicated they were not interested in pursuing services at Jeffersontown High School or holding an additional ARC to correct the error.” [DN 1-1 at 11 (ECAB Final Decision and Order).] The ECAB further stated that, “[a]t the hearing, each parent of [E.G.] acknowledged they had declined the offer by JCPS to have another ARC meeting to correct the IEP.” [Id.]

         On August 24, 2015, E.G.'s parents asked Anchorage to hold another ARC meeting with Anchorage personnel but without JCPS personnel present. Plaintiff claims that Anchorage refused to do so. [DN 6 at 4.] Thereafter, E.G.'s parents enrolled E.G. at the Bluegrass Center for Autism (“BCA”), which he still attends today. [Id. at 4-5.] E.G.'s parents then filed a Request for a Due Process Hearing on January 16, 2016, claiming that Anchorage violated its right to provide E.G. with a free appropriate public education (“FAPE”) for the 2015-2016 school year in violation of the IDEA. [DN 6 at 5.] The due process hearing was held from March 29 to 31, 2016, and a decision was rendered on July 5, 2016. [Id.] Therein, Hearing Officer Paul Whalen determined that Anchorage provided appropriate education to E.G. and that BCA could not provide E.G. with an appropriate education. [Id.]

         E.G.'s parents appealed the Hearing Officer's decision to the ECAB, which rendered a decision on November 14, 2016. [DN 1-1 at 21.] The ECAB held 1) that “Anchorage has no duty to consider a private placement [for E.G.] unless it is unable to provide FAPE through contract with a public school”; 2) that the ARC meetings were properly constituted; 3) that “the school did not have a procedural duty to give written notice regarding placement or refusal to change placement when it contracted with Jefferson County to provide high school services”; and 4) that “the process of developing the IEP has not been completed; [and] the case must be remanded to the LEA to convene an ARC meeting.” [Id. at 3-11.] The ECAB's fifth and final holding was that, “if Jefferson [County] cannot implement the IEP, the Bluegrass Center for Autism would be an appropriate placement for [E.G.].” [Id. at 12-20.] At the end of its Order, the ECAB stated that “[t]his matter is remanded back to the ARC for action consistent with this decision.” [Id. at 20.]

         The IDEA at 20 U.S.C. § 1415(i) gives parties aggrieved by decisions made during the administrative process “the right to bring a civil action . . . in any State court of competent jurisdiction or in a district court of the United States, without regard to the amount in controversy.” 20 U.S.C. § 1415(i)(2)(A). In reliance on this provision, Plaintiff commenced the instant action in this Court on December 14, 2016. [See DN 1 (Complaint).] Plaintiff later filed an Amended Complaint on January 24, 2017. [DN 6.] Plaintiff names multiple Defendants, including Anchorage Independent Public Schools (“Anchorage”); the Board of Education of Anchorage Independent Public Schools (“Board of Education”); the Kentucky Department of Education; the Division of Learning Services; and Gretta Hylton, in her official capacity as the Director of the Division of Learning Services (collectively, “Defendants”). [Id. at 2-3.] In detail, Plaintiff seeks a reversal of certain portions of the ECAB's Final Decision and Order, an award of reasonable attorneys' fees and costs, reimbursement for the cost of the tuition during the 2015-2016 and 2016-2017 school years, an award of the future tuition for the remainder of E.G.'s high school career, and “relief from future action.” [Id. at 1-2, 9.]

         In Plaintiff's view, the ECAB's decision “reversed the hearing officer” by finding that JCPS's July 28 IEP was not reasonably calculated to provide E.G. with an adequate educational benefit and that the Bluegrass Center for Autism was a placement capable of implementing the kind of IEP E.G. would need. [See DN 6 at 5 (quoting ECAB Final Decision and Order).] Accordingly, on December 16, 2016, two days after Plaintiff instituted this lawsuit in federal court, Plaintiff also filed a motion to clarify the ECAB's Final Decision and Order, specifically requesting that the ECAB identify E.G. as the prevailing party such that he is entitled to attorney fees and an award of expenses related to E.G.'s private school. [DN 22-2 at 3.] The ECAB denied the motion to clarify on December 21, 2016, stating that, because E.G.'s parents had already initiated proceedings in this Court, the “ECAB cannot clarify the Final Order absent an order from the District Court directing it to do so.” [Id.] However, in doing so, the ECAB noted at the outset that one of its findings in its November 14, 2016 Final Decision and Order remanding back to the LEA was “that the parents dropped out of the IEP process before it was completed.” [Id. at 2.]

         Herein, Anchorage moves to dismiss Plaintiff's claims for lack of subject matter jurisdiction under Rule 12(b)(1) and for judgment on the pleadings under rule 12(c) on the grounds that Plaintiff has failed to exhaust his administrative remedies. [DN 22 at 1 (Motion to Dismiss).] Specifically, Anchorage argues that, because the ECAB remanded the case to Anchorage (the LEA), to convene an ARC meeting to develop an appropriate IEP for E.G., [DN 1-1 at 11], that the administrative process is incomplete. For the reasons that follow, the Court agrees.


         Here, Anchorage moves to dismiss both under Federal Rules of Civil Procedure 12(c) and 12(b)(1). “For purposes of a motion for judgment on the pleadings [under Rule 12(c)], all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quoting Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). However, the Court “need not accept as true legal conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). “A Rule 12(c) motion ‘is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.'” Id. at 582 (quoting Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991)).

         For purposes of a motion to dismiss for lack of subject matter under Rule 12(b)(1) of the Federal Rules of Civil Procedure, such motions “generally come in two varieties.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). First, “[a] facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. Second, courts can “review[] a complaint under a factual attack, [in which] no presumptive truthfulness applies to the factual allegations.” Id. “If ...

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