UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

HERBERT DOUGLASS,

Plaintiff,

v. Civil Action No. 04–947 (CKK)

DISTRICT OF COLUMBIA,

Defendant.

MEMORANDUM OPINION (November 10, 2010)

Plaintiff Herbert Douglass (“Plaintiff”) commenced this action against Defendant District

of Columbia (the “District”) pursuant to the Individuals with Disabilities Education Act

(“IDEA”),

et seq.,1 Section 504 of the Rehabilitation Act of 1973 (“Section

504”),

, and

(“Section 1983”). Compl. ¶ 1, Docket No. [1].

By Memorandum Opinion and Order dated March 31, 2009 (“2009 Memorandum Opinion”),

this Court granted the District’s motion for judgment on the pleadings as to Plaintiff’s IDEA and

Section 1983 claims (Count I) and denied the District’s motion as to Plaintiff’s remaining

Section 504 claim (Count II). See Douglass v. District of Columbia,

(D.D.C. 2009). In its 2009 Memorandum Opinion, the Court also raised sua sponte the issue of

whether it has subject matter jurisdiction over Plaintiff’s Section 504 claim and ordered the

1 The IDEA was reauthorized and recodified pursuant to the Individuals with Disabilities Education Improvement Act in 2004,

Stat. 2647 (2004). The short title of the reauthorized and amended provisions remains the Individuals with Disabilities Education Act. See Pub. L. No 108-446, § 101; 118 Stat. at 2647;

(2006). Accordingly, the Court refers to the amended Act herein as the IDEA. parties to submit supplemental briefing on this issue. See

After reviewing the parties’

supplemental briefings, the Complaint, the relevant authorities, and the record as a whole, the

Court concludes that it lacks subject matter jurisdiction over Plaintiff’s Section 504 claim.

Therefore, the Court shall DISMISS Plaintiff’s Section 504 claim and, there being no further

claims remaining in this action, shall DISMISS this case in its entirety.

I. BACKGROUND 2

The IDEA provides that all children with disabilities must be provided a free and

appropriate public education (“FAPE”), and establishes procedural safeguards to ensure that

each disabled child receives an individualized education program (“IEP”) to fulfill this goal.

When the instant case was filed, Plaintiff was “a twenty-one year old learning disabled

student.” Compl. ¶ 8. For three years, Plaintiff was enrolled in special education classes

pursuant to his IEP at Ballou Senior High School, a school within the District’s public school

system (“DCPS”).

. Plaintiff avers that, although his IEP specified that he was to be on

the “high school diploma track,” he was never informed by the District that “the special

education classes he was attending were not eligible for Carnegie credits[3] and would not count

towards his graduation credits.”

. Accordingly, Plaintiff alleges that during his three

years at Ballou Senior High School, he did not receive any Carnegie units that would enable him

to receive a high school diploma.

. Plaintiff further alleges that his experience is not

2 The Court shall assume familiarity with its 2009 Memorandum Opinion and shall provide here only a brief summary of the instant case as is necessary to resolve the issue currently under consideration. See generally Douglass,

. 3 A “Carnegie” unit is a unit of credit for course work. See Douglass,

n.3. Under the District’s regulations, students must complete a certain number of “Carnegie” units in various subject areas to be eligible for graduation. See

2 unique, as “[s]tudents who take special education classes in most of the DCPS high schools

cannot receive Carnegie units for those classes” and, “[c]onsequently, most special education

high school students do not have the option of earning a high school diploma.” Id. ¶ 7.

A due process hearing was held on June 6, 2002, during which “DCPS admitted that [it]

could not offer [Plaintiff] Carnegie units at the high school level because he was enrolled in

special education classes.” Id. ¶ 12.4 Review of the HOD indicates that the complaint Plaintiff

and his parent brought against DCPS alleged that Plaintiff was denied a FAPE, in violation of

the IDEA, “through [DCPS’] failure to provide him a full-time special education program and

placement and classes in which he can earn Carnegie credits towards a diploma upon

graduation.” Hearing Officer Determination (“HOD”) at 3, Docket No. [31-2]. For relief,

Plaintiff requested: (1) an order directing DCPS to place and fund his attendance at Accotink

Academy, a full-time special education school that awards Carnegie units, for the 2002-03

school year; (2) compensatory education in the form of a sixteen week summer program at

Lindamood Bell Learning Center; and (3) reservation of the right to seek additional

compensatory education if necessary. Id. In addressing the merits of Plaintiff’s complaint, the

HOD concluded that DCPS’ mandate to provide Plaintiff a FAPE required it to: (1) inform

Plaintiff’s parent of the apparent conflict between Plaintiff’s need for special education classes

and his placement on a “diploma track” that required him to take non-special education classes

that offered Carnegie units; and (2) obtain a waiver releasing DCPS from its responsibility to

4 Although Plaintiff does not describe the relevant Hearing Officer Determination (“HOD”) in his Complaint nor attach at copy of the HOD to the Complaint, Plaintiff subsequently submitted a copy of the relevant HOD to the Court in connection with his Motion for Summary Judgment. See Docket No. [31-2]. Review of the HOD demonstrates that the hearing was held on June 6, 2002; the decision was filed on June 21, 2002, and was issued thereafter on June 24, 2002. See id. at 2, 5. 3 provide Plaintiff a FAPE if Plaintiff’s parent “persist[ed] on keeping her child on said ‘diploma

track.’ ” Id. at 4. Ultimately, the HOD concluded that DCPS failed to meet these requirements,

and therefore awarded Plaintiff all of his requested relief. See id. at 3-5.5 The HOD then

informed Plaintiff that he had thirty days in which to appeal the decision. Id. at 5.

Over two years later, on June 9, 2004, Plaintiff filed the instant case. See Compl.

Plaintiff’s Complaint asserts a putative class action6 and contains two counts. Count I alleges

that the District’s failure to offer Plaintiff special education classes that awarded Carnegie units

denied him a FAPE. Id. ¶ 16. Count II alleges that the District discriminated against Plaintiff

based solely on his disability by providing “only regular education students [with] the

opportunity to earn Carnegie units and work towards a regular high school diploma.” Id. ¶ 18.

Through this action, Plaintiff seeks various forms of relief, including money damages and an

order requiring the District to “credit Carnegie credits to all special education students who have

completed high school classes.” Id. ¶¶ 19-25.

The District filed its [5] Answer on August 19, 2004. Plaintiff subsequently filed a

motion for summary judgment, see Docket No. [31], and the District responded with a motion to

dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), see

Docket No. [32]. As parties are permitted to raise jurisdictional issues at any time, the Court

held in abeyance Plaintiff’s motion for summary judgment and ordered the parties to brief the

jurisdictional issues raised in the District’s motion to dismiss. See Min. Order (Apr. 11, 2006);

5 In addition to Plaintiff’s requested relief, the HOD also ordered DCPS to provide Plaintiff special education services during the summers of 2003 and 2004. HOD at 5. 6 While Plaintiff’s Complaint is styled as a class action, Plaintiff never sought class certification. 4 Min. Order (Aug. 24, 2006).

In its 2009 Memorandum Opinion, the Court construed the District’s motion to dismiss

as a motion for judgment on the pleadings because the District had already filed its Answer. See

Douglass,

. The Court then granted the District’s motion in regard to

Count I because the Court lacked subject matter jurisdiction over Plaintiff’s IDEA and Section

1983 claims, as Plaintiff failed to exhaust administrative remedies or the claims were time-

barred. See

. As for Plaintiff’s Section 504 claim (Count II), the Court denied the

District’s motion to dismiss for failure to state a claim, but raised sua sponte whether it had

subject matter jurisdiction over this claim. See

. Accordingly, the Court ordered the

parties to submit supplemental briefing as to “whether the Court lacks subject matter jurisdiction

over Plaintiff’s claim under the Rehabilitation Act because it is time-barred or, if not time-

barred, because Plaintiff failed to administratively exhaust his remedies under the IDEA.”

. Plaintiff then filed his [44] Response to Court’s March 31, 2009 Order (“Pl.’s Resp.”), the

District filed its [45] Response to Court’s March 31, 2009 Order (“Def.’s Resp.”) and Plaintiff

filed his [46] Reply to Defendant’s Response to Court’s March 31, 2009 Order (“Pl.’s Reply”).

The briefing on this issue is now complete, and the matter is therefore ripe for the Court’s review

and resolution.

II. LEGAL STANDARD

A plaintiff bears the burden of establishing that a federal court has subject matter

jurisdiction. Moms Against Mercury v. FDA,

(D.C. Cir. 2007); see also

Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994) (“Federal courts are courts

of limited jurisdiction . . . [and it] is to be presumed that a cause lies outside this limited

jurisdiction.”). Federal courts may raise the issue of their subject matter jurisdiction sua sponte. 5 NetworkIP, LLC v. FCC,

(D.C. Cir. 2008) (“‘It is axiomatic that subject

matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.’”) (quoting

Athens Cmty. Hosp., Inc. v. Schweiker,

, 992 (D.C. Cir. 1982)). “Indeed, [federal

courts] must raise it, because while arguments in favor of subject matter jurisdiction can be

waived by inattention or deliberate choice, [federal courts] are forbidden—as [] court[s] of

limited jurisdiction—from acting beyond [their] authority, and ‘no action of the parties can

confer subject-matter jurisdiction upon a federal court.’” Id. (quoting Akinseye v. District of

Columbia,

(D.C. Cir. 2003)).

III. DISCUSSION

As previously mentioned, the Court’s 2009 Memorandum Opinion ordered supplemental

briefing as to whether the Court lacks subject matter jurisdiction over Plaintiff’s Section 504

claim because (1) the claim is time-barred or (2) if not time-barred, because Plaintiff failed to

exhaust his administrative remedies. Douglass,

. The Court shall address

each of these issues in turn.

A. To the Extent Plaintiff’s Section 504 Claim is Based Upon the Allegations Raised Before the Hearing Officer, the Claim is Time-Barred

The District argues that to the extent Plaintiff’s Section 504 claim is based on the same

allegations as Plaintiff’s IDEA claim before the hearing officer, Plaintiff’s Section 504 claim is

time-barred as Plaintiff failed to timely appeal the HOD. Def.’s Resp. at 6-7. Plaintiff, in

contrast, argues that his Section 504 claim is not time-barred because it asserts a systemic

violation claim distinct from his claims before the hearing officer, which pertained only to his

personal IEP and placement. See Pl.’s Reply at 3.

6 The Court, however, is not persuaded by Plaintiff’s most recent characterization of his

Section 504 claim. First, this characterization of Count II is, at best, dubious given Count II’s

repeated references to Plaintiff’s individual circumstances, as opposed to systemic violations.

See Compl. ¶ 18 (“Defendants have discriminated against the plaintiff solely based on his

disability. The only reason Herbert Douglass did not receive Carnegie units for his high school

classes while at Ballou Senior High School was because he was a special education student.”)

(emphasis added). Additionally, Plaintiff’s characterization of Count II as a systemic violation

claim was conspicuously absent from his opposition to the District’s motion to dismiss Count II,

wherein Plaintiff argued that the District’s failure to implement his individual IEP formed the

basis of his Section 504 claim. See Pl.’s [35] Opp’n to Def.’s Mot. to Dismiss at 8 (“DCPS’s

failure to fully implement Herbert’s IEP, the same IEP they participated in developing, states a

claim that the DCPS officials either acted in bad faith or used gross misjudgment. . . . DCPS

discriminated against Herbert based solely on his disability by not having the appropriately

qualified teachers in his classes.”). Only now, faced with a jurisdictional challenge, has Plaintiff

sought to pivot and recast his Section 504 claim as a systemic violation claim.

Interpreted consistently with Plaintiff’s prior representations to this Court, Plaintiff’s

Section 504 claim is clearly time-barred because Plaintiff filed the instant case over two years

after the HOD was issued.7 Therefore, the Court lacks subject matter jurisdiction over Plaintiff’s

Section 504 claim. See, e.g., Carruthers v. Ludlow Taylor Elem. Sch.,

(D.D.C. 2006) (“[T]he limitations period is ‘mandatory and jurisdictional: once the time

7 When the HOD was issued, Plaintiff had thirty days to appeal. See Douglass,

. 7 prescribed by the rules is passed, [the court is] without the power to hear the case.”). As such,

Plaintiff’s Section 504 claim fails on this ground alone.

B. The Court Also Lacks Subject Matter Jurisdiction Over Plaintiff’s Section 504 Claim Because Plaintiff Failed to Exhaust Administrative Remedies

Even crediting, arguendo, Plaintiff’s most recent characterization of his Section 504

claim as a systemic violation claim, the Court would still lack subject matter jurisdiction, as

Plaintiff failed to exhaust his administrative remedies as to such a claim.

“A court has no subject matter jurisdiction over an IDEA claim that has not first been

pursued through administrative channels.” Massey v. District of Columbia,

(D.D.C. 2005). The IDEA explicitly extends its exhaustion requirement to any claims for

relief that are available under the IDEA, regardless of the statutory basis for such claims:

Nothing is this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, . . . title V of the Rehabilitation Act of 1973 . . . , or other Federal laws protecting the rights of children with disabilities, except that before filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures [for an impartial due process hearing and administrative appeal] shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

(l); see also Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist.,

, 481 (2d Cir. 2002) (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, even if their claims are formulated under a statute other than

the IDEA (such as the ADA or the Rehabilitation Act).”).

Broadly speaking, the exhaustion doctrine furthers several important ends, including

“prevent[ing] the parties from undermining the agency by deliberately flouting the

administrative process.” Cox v. Jenkins,

(D.C. Cir. 1999). In regards to the

8 IDEA in particular, the exhaustion doctrine advances two sound policies: (1) even if the agency

below “cannot resolve the problem finally, the record made in the administrative proceeding will

be extremely helpful to the court, since the administrative agency will likely have probed the

issue with more expertise than a federal court could bring;” and (2) the administrative process

affords “a means whereby official abuse can be corrected without resort to lengthy and costly

trial.”

(discussing these policies in the context of the IDEA’s predecessor, the Education of

the Handicapped Act (“EHA”)) (internal quotation marks and citation omitted) (quoting Riley v.

Ambach,

(2d Cir. 1981)).

In its 2009 Memorandum Opinion, the Court noted that

(l) appears to

require Plaintiff to also satisfy the IDEA’s exhaustion requirement in regard to his Section 504

claim. See Douglass,

. In his Response, Plaintiff does not quarrel with

this assessment, arguing instead that his Section 504 claim falls within two exceptions to the

IDEA’s exhaustion requirement. See Pl.’s Resp. at 3-5.

As both parties recognize, litigants “may bypass the [IDEA’s] administrative process

where exhaustion would be futile or inadequate.” Honig v. Doe,

(1988)

(discussing exhaustion in the context of the EHA); see also Pl.’s Resp. at 2; Def.’s Resp. at 9.

Under the IDEA in particular, a plaintiff’s failure to exhaust his or her administrative remedies

may be excused in three general circumstances:

(1) Resort to the administrative process would be “futile;”

(2) It is “improbable that adequate relief” could be obtained through administrative channels; or

(3) The agency has adopted a policy or pursued a practice of “general applicability” that is contrary to the law.

9 DL v. District of Columbia,

(D.D.C. 2006) (quoting Murphy v. Arlington

Cent. Sch. Dist. Bd. of Educ.,

(2d Cir. 2002)). In this Circuit, the exceptions

for futility and inadequacy are narrowly construed, as the exhaustion requirement “may be

waived only in the most exceptional circumstances.” Commc’ns Workers of Am. v. AT&T,

(D.C. Cir. 1994) (quoting Peter Kiewit Sons’ Co. v. U.S. Army Corps. of Eng’rs,

(D.C. Cir. 1983)). Additionally, Plaintiff bears the burden of proving such

extraordinary circumstances. See Honig,

; Cox,

.

In this case, Plaintiff argues that his failure to exhaust administrative remedies should be

excused for two reasons. First, Plaintiff argues that his Section 504 claim falls within a so-called

“systemic violation exception” to the exhaustion requirement because his Section 504 claim

asserts “a system-wide practice that is not isolated to one particular DCPS school.” Pl.’s Resp.

at 4. Second, Plaintiff argues that exhaustion would be futile because, as he has already

graduated from school, the only adequate relief for his Section 504 claim would be

compensatory damages––a remedy not available through the administrative process. See

at 4-

5. The District, unsurprisingly, refutes each of these contentions and argues that Plaintiff must

exhaust his administrative remedies. See Def.’s Resp. at 7-14. The Court shall address each

argument below.

1. There Is No “Systemic Violation” Exception to the IDEA’s Exhaustion Requirement

As a threshold matter, contrary to Plaintiff’s arguments, see Pl.’s Resp. at 2, the so-called

“systemic violation exception” is not in fact a separate exception to the IDEA’s exhaustion

requirement. Rather, systemic violation claims are more appropriately analyzed under the

exceptions for futility and inadequacy. See, e.g., DL,

(holding that

10 exhaustion of plaintiffs’ claims of systemic IDEA violations would be futile and inadequate);

Massey,

(finding that “DCPS’ repeated failure to follow unambiguous

terms of law and to acknowledge and correct its mistakes” rendered exhaustion inadequate).

Admittedly, some case law originating from outside of this Circuit provides at least some

support for Plaintiff’s characterization of the so-called “systemic violation exception” as a

separate exception to the exhaustion doctrine. See, e.g., Hoeft v. Tucson Unified Sch. Dist.,

, 1303 (9th Cir. 1992).8 However, neither party cites to any case law from this Circuit

that would support the existence of such an exception. In fact, the various courts in this Circuit

that have had the opportunity to address whether systemic violation claims may be excused from

the IDEA’s exhaustion requirement have done so under the recognized exceptions for futility or

inadequacy––not a separate systemic violation exception. See, e.g., DL,

-

19; Massey,

. Consistent with this approach, the Court shall address

Plaintiff’s argument as a subspecies of futility and inadequacy.9

Distilled to its essence, Plaintiff’s argument regarding the significance of his Section 504

claim purportedly asserting a systemic violation is as follows: “an administrative hearing officer

8 The Court notes, however, that this characterization seems to overreach to some extent; the cases upon which Plaintiff relies appear to devolve into analyses under the futility exception––not a wholly independent systemic violation exception. See, e.g., J.S. v. Attica Cent. Schs.,

, 113 (2d Cir. 2004) (explaining that the Second Circuit “had previously excused exhaustion of administrative remedies in cases that included allegations of systemic violations” because exhaustion “would be futile”) (emphasis added); Hoeft, 967 F.2d at 1305 (explaining that systemic violations may be excused from exhaustion when they allege facial violations of the IDEA, such that “agency expertise and an administrative record are theoretically unnecessary in resolving the issue at hand”––i.e., exhaustion would be futile). 9 This clarification does not alter the ultimate result in this case because, even if the Court were to follow the courts that have recognized an independent “systemic violation exception,” the Court would eventually analyze Plaintiff’s argument under the futility exception. See supra p. 11 n.8. 11 does not have the power to correct this systemic violation of the law, and thus

exhaustion of administrative remedies would be futile.” Pl.’s Resp. at 4.10 In other words,

Plaintiff argues that “the only remedy to correct this systemic violation would be a system wide

reform, which an administrative hearing officer does not have the authority to order.” Pl.’s

Reply at 5. The District counters that, inter alia, requiring Plaintiff to exhaust his remedies

would advance the exhaustion doctrine’s purposes and would not be futile or inadequate. Def.’s

Resp. at 8-9. For the reasons set forth below, the Court agrees with the District and concludes

that Plaintiff has failed to meet his burden of proving that exhaustion would be futile or

inadequate.

First, based on the record created by the parties, the Court finds that the first purpose of

the IDEA’s exhaustion requirement––the creation of an administrative record helpful to a

reviewing court’s resolution of Plaintiff’s Section 504 claim––would be furthered in this case by

requiring Plaintiff to exhaust his administrative remedies. See Cox,

(“[T]he

record made in the administrative proceeding will be extremely helpful to the court, since the

administrative agency will likely have probed the issue with more expertise than a federal court

could bring.”). Significantly, unlike other allegations of systemic violations that courts have

10 To the extent Plaintiff’s argument could also be interpreted as claiming that, because Count II alleges a systemic violation, ipso facto, exhaustion is excused, see Pl.’s Resp. at 4, such an argument would be inconsistent with clear and unequivocal case law providing that the exhaustion requirement “may be waived only in the most exceptional circumstances,” Commc’ns Workers of Am.,

(quoting Peter Kiewit Sons’,

). Furthermore, even courts that arguably characterize the systemic violation exception as a separate exception to the exhaustion doctrine have concluded that the mere fact that a complaint asserts a systemic violation claim does not itself excuse a plaintiff’s failure to exhaust. See Hoeft, 967 F.2d at 1304 (The systemic violation exception could not be met simply by “[s]tructuring a complaint as a challenge to policies, rather than as a challenge to an [IEP] formulated pursuant to these policies;” rather, plaintiffs must “demonstrate in addition that the underlying purposes of exhaustion would not be furthered by enforcing the requirement”). 12 found to be excused from the IDEA’s exhaustion requirement, it does not appear, and Plaintiff

does not argue, that Count II asserts a facial violation of Section 504––i.e., that Section 504

explicitly requires the District to award Carnegie units to those enrolled in special education

classes. See Pl.’s Resp. at 3-4; Pl’s Reply at 3-6; DL,

(noting that plaintiffs

alleged violations of the District’s explicit statutory obligations to identify, locate, evaluate, and

offer special education services to all disabled pre-school children). Instead, Plaintiff appears to

be arguing that the District’s policy of awarding Carnegie units for only non-special education

classes constitutes discrimination based on disability, which in turn violates Section 504. See

Pl.’s Reply at 5.11 Absent a facial violation claim, the hearing officer’s inquiry into the District’s

allegedly discriminatory policy would assist a reviewing court in determining whether this

alleged practice in fact constitutes discrimination “solely” due to disability.

(a).

Second, the Court agrees with the District that the second purpose of the IDEA’s

exhaustion requirement––“providing a means whereby official abuse can be corrected without

resort to lengthy and costly trial”––would be furthered by requiring Plaintiff to exhaust his

remedies. Cox,

; see also Def.’s Resp. at 8-9. Notably, Plaintiff obtained all the

relief he requested for those claims he actually raised before the hearing officer, see Docket No.

[31-2], and he has provided no explanation as to why the District should not be provided a

similar opportunity to correct its possible mistakes with respect to his Section 504 claim, see

generally Pl.’s Resp.; Pl.’s Reply. Without a showing that the District would certainly refuse to

correct Plaintiff’s alleged violations, the Court finds that the second purpose of the IDEA’s

11 Section 504 provides, in pertinent part: “No otherwise qualified individual with a disability in the United States, . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

(a). 13 exhaustion requirement is also served by requiring Plaintiff to exhaust his remedies. Cf. Massey,

(excusing plaintiffs’ failure to exhaust because “the litany of DCPS

failures reveals that it is apparently unable to follow statutory procedures in the first place” and

“[w]orse yet, DCPS appears to be incompetent to address, in the manner required by the IDEA, a

parent’s complaints about those failures.”).

Third, even if a hearing officer would hypothetically be unable to correct Plaintiff’s

alleged systemic violations, Plaintiff’s Section 504 claim raises questions of educational policy

“upon which the state experts should first have their say” and which “the record created by the

application of their expertise to those problems will certainly help the federal court resolve the

issue in a more informed manner.” Riley,

. As Plaintiff acknowledges,

his proposed remedy to his alleged systemic violation––offering Carnegie units in special

education classes––would require teachers of such classes to be dually certified. See Pl.’s Resp.

at 4. The soundness of the District’s alleged practice of not requiring dual certification and the

appropriateness of Plaintiff’s proposed remedy implicate matters of educational policy that

would benefit from an administrative record, and the Court is not in a position to opine upon

these matters in the first instance. See Hendrick Hudson Cent. Sch. Dist. Bd. of Educ. v. Rowley,

(1982) (“[C]ourts lack the specialized knowledge and expertise necessary to

resolve persistent and difficult questions of educational policy.”) (internal quotation marks and

citation omitted).

Finally, requiring Plaintiff to exhaust his administrative remedies will advance the

exhaustion doctrine’s overall purpose of “prevent[ing] the parties from undermining the agency

by deliberately flouting the administrative process.” See Cox,

. As previously

mentioned, Plaintiff argues that his Section 504 claim is distinct from his claims before the 14 hearing officer. See Pl.’s Reply at 3. This distinction, however, is at best nothing more than

semantics, and at worst a thinly veiled attempt to evade the ramifications of Plaintiff’s failure to

timely appeal the HOD. Of course, every IDEA and related Section 504 claim can be

reformulated as a broader challenge to a policy, instead of a challenge to a plaintiff’s own IEP or

placement. However, lest the IDEA’s exhaustion requirement be rendered a nullity, a self-

serving (and, in this case, belated) reformulation alone cannot excuse a plaintiff’s failure to

exhaust. See Hoeft, 967 F.2d at 1304 (“Structuring a complaint as a challenge to policies, rather

than as a challenge to an [IEP] formulated pursuant to these policies . . . does not suffice to

establish entitlement to a waiver of the IDEA’s exhaustion requirement.”).

For the aforementioned reasons, the Court concludes that Plaintiff has failed to carry his

burden of proving that exhausting his Section 504 claim should be excused due to Count II

purportedly alleging a systemic violation of Section 504. The law requires Plaintiff to establish

“exceptional circumstances,” and Plaintiff has fallen woefully short of satisfying his burden here.

2. Plaintiff’s Claim for Compensatory Damages Does Not Render the IDEA’s Exhaustion Requirement Inadequate

Plaintiff also claims that exhaustion of his Section 504 claim should be excused because

the remedies that the hearing officer is empowered to order under the IDEA would be

inadequate. Pl.’s Resp. at 4-5. Plaintiff relies on Covington v. Knox County School System,

(6th Cir. 2000), to argue that because he has already graduated from school, only

compensatory damages, which a hearing officer cannot order, may remedy his alleged violations.

Pl.’s Resp. at 4-5. In response, the District argues that “the majority of courts” confronted with

this issue have held that a plaintiff seeking compensatory damages must exhaust under the

IDEA, even if such damages are not available in the administrative process. Def.’s Resp. at 13.

15 Plaintiff raised this identical argument in his opposition to the District’s motion to

dismiss. Pl.’s [35] Opp’n to Def.’s Mot. to Dismiss at 11 (arguing that exhaustion is not required

for Plaintiff’s Section 1983 claim for IDEA violations (Count I) because “it is not within the

purview of the Hearing Officer to award damages” and “normal remedies under the IDEA,

specifically compensatory education, are inadequate to compensate [Plaintiff] for the harm he

has suffered . . . because he is out of school.”) (internal quotation marks and citation omitted). In

its 2009 Memorandum Opinion, the Court rejected this argument and held that “Plaintiff . . . may

[not] skirt the administrative remedies provided for in the IDEA simply by adding a claim for

monetary relief,” because otherwise

every plaintiff who had failed to exhaust his or her administrative remedies could simply side-step the error by adding a claim for monetary damages to his or her complaint in federal court. Such a result is illogical and in direct contradiction to the purpose of the IDEA’s exhaustion requirement.

Douglass,

. Under the law-of-the-case doctrine, the Court’s prior decision

regarding whether a claim for compensatory damages allows Plaintiff to circumvent the IDEA’s

exhaustion requirement is binding here. See LaShawn A. v. Barry,

(D.C. Cir.

1996) (“[T]he same issue presented a second time in the same case in the same court should lead

to the same result.”). As Plaintiff does not dispute that his Section 504 claim is subject to the

IDEA’s exhaustion requirement, see Pl.’s Resp. at 2-3, the Court shall not revisit its previous

holding that Plaintiff is not excused from the IDEA’s exhaustion requirement because he seeks

compensatory damages.

IV. CONCLUSION

For the reasons set forth above, the Court concludes that it lacks subject matter

jurisdiction over Plaintiff’s Section 504 claim, regardless of whether the claim is in fact distinct

16 from the claims Plaintiff raised before the hearing officer. Accordingly, the Court shall

DISMISS Count II and, there being on further claims in this action, DISMISS this case in its

entirety. An appropriate Order accompanies this Memorandum Opinion.

Date: November 10, 2010.

/s/ COLLEEN KOLLAR-KOTELLY United States District Judge

17