United States Court of Appeals For the First Circuit

Nos. 20-2054 20-2112

JOSÉ VALENTÍN-MARRERO, personally, as member of his Conjugal Partnership, and on behalf of his minor son GAJVM; EMÉRITA MERCADO-ROMÁN, personally, as member of her Conjugal Partnership, and on behalf of her minor son GAJVM,

Plaintiffs, Appellants, Cross-Appellees,

v.

COMMONWEALTH OF PUERTO RICO; DEPARTMENT OF EDUCATION OF THE COMMONWEALTH OF PUERTO RICO,

Defendants, Appellees, Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Raúl M. Arias-Marxuach, U.S. District Judge]

Before

Lynch and Kayatta, Circuit Judges, and Laplante,* District Judge.

Antonio Borrés-Otero for appellants, cross-appellees. Carlos Lugo-Fiol, with whom Fernando Figueroa-Santiago, Solicitor General of Puerto Rico, was on brief, for appellees, cross-appellants.

March 24, 2022

* Of the District of New Hampshire, sitting by designation. LYNCH, Circuit Judge. This case was brought by parents

who were dissatisfied with the Individualized Education Plan

("IEP") offered to their son, GAJVM, by the defendant, the Puerto

Rico Department of Education ("DOE"), for the 2018-2019 school

year. Despite their dissatisfaction, the parents did not file an

administrative appeal, which was available to them. Rather, they

sued in the United States District Court for the District of Puerto

Rico on May 11, 2018. That court issued orders over a span of

several years addressing the merits of the claims of denial of a

"free, appropriate public education" ("FAPE"). Throughout the

proceedings, the DOE argued that the court had no jurisdiction due

to the failure of the parents to exhaust their administrative

remedies. On October 9, 2020, the district court issued an Amended

Opinion and Order denying in part the plaintiffs' motion for

summary judgment and granting in part the defendants' motion for

summary judgment. See Valentín Marrero v. Puerto Rico, No. 18-

cv-01286,

(D.P.R. Oct. 9, 2020). Both parties

have appealed from that order in cross-appeals. We vacate the

district court's judgment and order dismissal of the case for

failure to exhaust administrative remedies.

I.

GAJVM is a minor student registered with the DOE as a

student with disabilities. In Puerto Rico, the DOE is responsible

for ensuring that students with special education needs receive a

- 2 - FAPE as required by the Individuals with Disabilities Education

Act ("IDEA"),

et seq. See Colón-Vasquez v. Dep't

of Educ. of P.R.,

(D.P.R. 2014).

During the 2016-2017 school year, GAJVM was placed at a

private institution, CADEI Bilingual School ("CADEI"), at public

expense as part of the DOE's existing contract with the school.

On August 22, 2017, Emérita Mercado-Román and José Valentín-

Marrero, GAJVM's parents, filed an administrative complaint with

the Special Education Administrative Forum of the DOE to request

that the DOE be ordered to continue funding GAJVM's tuition at

CADEI for the 2017-2018 school year. Following review, and

approving an agreement by the parties, the administrative judge

issued the following order on February 12, 2018:

1. The Department of Education is hereby ordered to purchase educational and related services to benefit the complainant student for the time remaining in school year 2017- 2018 at the private educational institution. Said purchase must be carried out by immediately including the complainant student in the existing contract between the educational agency and the private school. 2. The Department of Education is hereby ordered to, on or before February 22, 2018, coordinate a Programming and Placement Committee Meeting at the private school. The purpose of the Programming and Placement Committee Meeting will be to review the student's IEP for school year 2016-2017, prepare the IEP for school year 2017-2018, and analyze and discuss any matter that may be necessary regarding the provision of educational and related services that the

- 3 - student may require to receive a free, appropriate, public education. 3. The Department of Education is hereby ordered to hold a Programming and Placement Committee Meeting at the private school on or before April 6, 2018, in order to prepare the complainant student's IEP for school year 2018-2019 and evaluate possible placement alternatives for its implementation. 4. The Complaint herein is hereby CLOSED AND FILED.

GAJVM attended CADEI for the 2017-2018 school year.

Pursuant to the administrative judge's order, the

Programming and Placement Special Education Committee ("COMPU" in

its Spanish acronym) held meetings on February 22, March 8, March

15, and March 21, 2018 to discuss GAJVM's 2017-2018 IEP. All the

parties at the March 21 meeting approved the 2017-2018 IEP. The

IEP provides, inter alia, that "ABA [Applied Behavior Analysis]

must be applied throughout the entire educational process (with

backing from a professional certified in ABA)." The parties

discussed at the March 21 meeting that the CADEI school did not

have the facilities, services, or staff required to implement the

2017-2018 IEP. The recommendations in the IEP were based in part

on a Functional Evaluation of Conduct Report prepared by Marta

Riviere for GAJVM on May 1, 2016, which stated that full-time ABA

therapies were recommended. The 2017-2018 IEP was the last IEP

not in dispute.

Another COMPU meeting took place on April 5, 2018, this

time to discuss a draft 2018-2019 IEP. The parents requested that

- 4 - the 2018-2019 IEP contain the very same ABA therapy requirements

which had been set forth in the 2017-2018 IEP. The DOE disagreed

and instead offered a one-on-one classroom at the Angelita Delgado

Sella School with a teacher specialized in autism, a specialized

services assistant for GAJVM, transportation provided by a

carrier, and comprehensive therapy in the classroom. The parents

rejected this proposed IEP.

Despite this dispute, the parents did not file any

administrative appeal about the 2018-2019 IEP or any year's IEP

since. They did not file such an appeal, although they had

previously done exactly that when they sought to have the DOE pay

for GAJVM's tuition at CADEI for the 2017-2018 school year, and

that administrative appeal led to the administrative judge's

February 2018 order.

On May 11, 2018, the parents filed a complaint in federal

district court seeking injunctive relief, reimbursement of costs,

and attorney's fees for purported violations of the IDEA. The

requested preliminary injunction would require the DOE to prepare

a 2018-2019 IEP incorporating ABA services in a location compliant

with such services. At the time of the filing of the complaint,

GAJVM was enrolled at CADEI.

On May 31, 2018, the defendants filed the first of two

motions to dismiss based on the plaintiffs' failure to exhaust

their administrative remedies (they also argued this in support of

- 5 - their summary judgment motion). The first motion to dismiss was

brought under Rule 12(b)(6) for failure to state a claim and the

second was brought under Rule 12(b)(1) for lack of subject matter

jurisdiction. The DOE filed the second motion to dismiss on

September 10, 2018. The parents opposed these motions, arguing

that they had no obligation to exhaust in this case. Relying on

both D.E. v. Central Dauphin School District,

(3d

Cir. 2014), and Nieves-Márquez v. Puerto Rico,

(1st

Cir. 2003), they argued that they were merely seeking to enforce

the administrative judge's order and so did not need to have a due

process hearing regarding the 2018-2019 IEP before the district

court weighed in on it.

Despite the DOE's assertion of a lack of subject matter

jurisdiction, on September 13, 2018, a magistrate judge held a

hearing on the motion for preliminary injunction. The magistrate

judge heard testimony from competing educational experts and

others as to the motion.

Following the hearing, the magistrate judge issued a

report and recommendation on October 4, 2018. He recommended that

preliminary injunctive relief be granted in part and that:

The court should order Defendants (1) to place GAJVM in the Star-Link program at the Angelita Delgado Sella School in Lares; (2) to convene a COMPU meeting on or before November 1, 2018 at the School in order to analyze and discuss any matter that may be necessary regarding the provision of educational and therapeutic

- 6 - services that GAJVM may require to receive a free appropriate public education; (3) to prepare at that COMPU meeting a new IEP for the remainder of the 2018–19 school year to be submitted to this court on or before November 15, 2018; (4) to ensure that GAJVM’s instructors are furnished with information on how to request support from the Star-Link program director as well as the names and contact information for Star Autism support members who are Board Certified Behavior Analysts.

On November 13, 2018, the district court issued two

relevant orders. It adopted the portions of the report and

recommendation concerning background and discussion, but rejected

the magistrate judge's conclusion, saying it was "contrary to law

to the extent it forces plaintiffs to accept an IEP that is not

designed by an ABA certified provider and does not apply ABA

services." Rather, the district court granted the preliminary

injunction in part and ordered the parties "to convene a COMPU

meeting on or before DECEMBER 14, 2018 and prepare a new IEP for

the remainder of the 2018-2019 school year designed by an ABA

certified provider that applies ABA services throughout the

educational process."

The same day, the district court denied the two motions

to dismiss. It relied on the Third Circuit's decision in Central

Dauphin School District.

. It stated that "[a]fter

the DOE failed to provide an IEP for school year 2018-2019 that

included services previously deemed necessary . . . plaintiffs

- 7 - commenced this suit to enforce the [Administrative Law Judge]'s

'final' order."

The district court ordered the DOE and the parents to

meet multiple times throughout 2018 and 2019 to try to develop an

IEP. The parents rejected all proposed IEPs and eventually stopped

engaging in the process, refused to discuss the draft proposals,

left meetings early, and did not attend a scheduled meeting. They

filed several motions captioned "Urgent" and urged the district

court to find the DOE in contempt (a motion which the district

court held in abeyance).

Meanwhile, at the beginning of November 2018, the

parents unilaterally placed GAJVM at the Starbright Academy, a

private school, for two hours each day to receive services with an

ABA focus. These services continued through January 2019. For

the second semester of the 2019-2020 school year, GAJVM did not

receive services at Starbright due to an earthquake in Puerto Rico

and the COVID-19 pandemic.

On June 20, 2019, the case was reassigned to a different

district court judge. The parents filed a motion for summary

judgment on June 15, 2020. On June 29, 2020, the DOE filed a

motion for summary judgment, arguing once again that the case

should be dismissed for lack of subject matter jurisdiction due to

the plaintiffs' failure to exhaust administrative remedies. On

August 19, 2020, the district court entered final judgment denying

- 8 - in part and granting in part both the plaintiffs' and the

defendants' motions for summary judgment. Following a motion by

the parents to amend the judgment, the district court issued an

amended final judgment granting in part and denying in part the

plaintiffs' and the defendants' motions for summary judgment on

October 9, 2020, which is the subject of the present appeal.

The district court found that the DOE had failed to

provide GAJVM with a FAPE for the 11 months between April 2018,

when the DOE proposed a 2018-2019 IEP which the district court

found was insufficient under the IDEA, and February 2019, when the

DOE proposed a 2018-2019 IEP which the district court concluded

comported with the IDEA.1 It declined to order placement for GAJVM

at Starbright Academy. The district court then ordered the parties

to draft a 2020-2021 IEP by October 30, 2020 and, if they were

unable to agree, ordered the parents to exhaust their

administrative remedies. As to the DOE's exhaustion argument, the

district court stated "the Court has previously rejected

Defendants' repeated contention that Plaintiffs failed to exhaust

administrative remedies. . . . Thus, the Court need not readdress

the issue at this juncture."

1 The district court also ordered the DOE to reimburse the parents for private school tuition and to provide compensatory education for the period during which GAJVM was denied a FAPE. The DOE did not appeal this holding except insofar as it is encompassed by the exhaustion argument.

- 9 - The parents appealed the district court's

(1) determination that the proposed 2019-2020 IEP complied with

the IDEA and with the court's orders; (2) its decision not to order

placement for GAJVM at the Starbright Academy; and (3) its order

to exhaust administrative remedies if agreement as to the 2020-

2021 IEP is not reached. The defendants cross-appealed, arguing

the district court should have dismissed the case for lack of

subject matter jurisdiction based on the parents' failure to

exhaust administrative remedies.

II.

"In IDEA cases, as elsewhere, we review the district

court's answers to questions of law de novo and its findings of

fact for clear error." C.G. ex rel. A.S. v. Five Town Cmty. Sch.

Dist.,

(1st Cir. 2008).

The IDEA was enacted by Congress "to ensure that all

children with disabilities have available to them a free

appropriate public education that emphasizes special education and

related services designed to meet their unique needs."

(d)(1)(A). "'The primary vehicle for delivery of a FAPE' is

an Individualized Education Program ('IEP')." Johnson v. Bos.

Pub. Sch.,

(1st Cir. 2018) (quoting D.B. ex rel.

Elizabeth B. v. Esposito,

(1st Cir. 2012)). An

IEP must be tailored to the particular child and must be

"reasonably calculated to enable a child to make progress

- 10 - appropriate in light of the child's circumstances[.]"

(quoting

Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1,

, 999 (2017)). However, an IEP need not provide "an

optimal or an ideal level of educational benefit[] in order to

survive judicial scrutiny." Lessard v. Wilton Lyndeborough Coop.

Sch. Dist.,

, 23–24 (1st Cir. 2008).

The IDEA provides a framework for parents to commence an

administrative process to raise complaints "with respect to any

matter relating to the identification, evaluation, or educational

placement of the child, or the provision of a free appropriate

public education to such child."

(b)(6)(A). Such

parents "ha[ve] recourse to an impartial due process hearing

conducted by either the local or state educational agency[.]"

Frazier v. Fairhaven Sch. Comm.,

(1st Cir. 2002);

see also

(f)-(g).

The IDEA provides that "[a]ny party aggrieved by the

findings and decision made [at the administrative hearing] . . .

shall have the right to bring a civil action with respect to the

complaint presented pursuant to this section [in state or federal

court]."

(i)(2)(A). Before doing so, parties

must satisfy IDEA's exhaustion provision, which states:

Nothing in [the IDEA] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other

- 11 - Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under [subchapter II of the IDEA], the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

§ 1415(l). This provision "requires exhaustion when the

gravamen of a complaint seeks redress for a school's failure to

provide a FAPE." Fry v. Napoleon Cmty. Sch.,

(2017).

We have recognized that "special benefits adhere to the

exhaustion requirement in the IDEA context." Frazier,

. One such benefit is that it "places those with specialized

knowledge -- education professionals -— at the center of the

decisionmaking process, entrusting to them the initial evaluation

of whether a disabled student is receiving a free, appropriate

public education."

This "ensure[s] that educational agencies

will have an opportunity to correct shortcomings in a disabled

student's [IEP]."

. Judges are not education

professionals and generally do not have the knowledge and expertise

that hearing officers in IDEA cases have.

The importance of the IDEA's administrative procedures

is underscored by the extent to which courts must rely on the

evidentiary record developed in the due process hearing. Id.; see

also

(i)(2)(C)(i). That the IDEA provides for

- 12 - judicial review of administrative decisions is "by no means an

invitation to the courts to substitute their own notions of sound

educational policy for those of the school authorities which they

review." Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist.,

Westchester Cnty. v. Rowley,

(1982). Permitting

parents to bypass the administrative process in order to have

courts determine in the first instance whether an IEP provides a

FAPE frustrates the IDEA's "carefully calibrated balance and

shifts the burden of factfinding from the educational specialists

to the judiciary." Frazier,

.

The IDEA's exhaustion requirement also serves the

purposes that exhaustion requirements in administrative regimes

typically serve, including "forc[ing] parties to take

administrative proceedings seriously, allow[ing] administrative

agencies an opportunity to correct their own errors, and

potentially avoid[ing] the need for judicial involvement

altogether." Frazier,

(quoting P. Gioioso & Sons,

Inc. v. OSHRC,

(1st Cir. 1997)).

The parent appellants concede that they did not exhaust

the claims asserted in this litigation. They try to excuse their

failure but do not rely on the usual exceptions. Dissatisfied

parents need not exhaust administrative remedies if they "can show

that the agency's adoption of an unlawful general policy would

make resort to the agency futile, or that the administrative

- 13 - remedies afforded by the process are inadequate given the relief

sought" or if "the agency has prevented the litigant from pursuing

the administrative process." Rose v. Yeaw,

, 210–11

(1st Cir. 2000). The parent appellants do not rely on these

exceptions, nor could they, given the record before us.2

The parent appellants here argue that they do not need

to exhaust their administrative remedies because they are merely

enforcing the administrative judge's favorable decision, and are

parties aggrieved because of the DOE's failure to implement it.

They argue that it is "inapposite" that they have never brought

the allegations in the complaint in an administrative forum. They

argue that the IDEA prohibited the DOE from not offering the same

ABA services in the 2018-2019 IEP draft that it did in the 2017-

2018 IEP. Violating the IDEA in this way, they argue, contravened

the administrative judge's order to meet in order to prepare an

IEP and to "analyze and discuss any matter that may be necessary

regarding the provision of educational and related services that

the student may require to receive a free, appropriate, public

education."

2 The parent appellants make a passing reference in their brief that the district court's order to exhaust administrative remedies if they cannot reach agreement as to the 2020-2021 IEP would be a "futile exercise, or at the very least inadequate." However, "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Zannino,

(1st Cir. 1990).

- 14 - In Nieves-Márquez v. Puerto Rico, we held that parents

are "parties aggrieved" under § 1415(i)(2) and can bring suit in

state or federal court when "they succeed before the hearing

officer and the school system does not appeal the administrative

decision but simply fails to fulfill a continuing obligation to

provide services."

. There, an administrative

hearing officer found the school needed to provide the child with

a sign language interpreter, but the school failed to provide one

the subsequent year and the parents sued to enforce the hearing

officer's interpreter order.

. We held that the

parents did not need to exhaust administrative remedies by

returning to a hearing officer to get an order enforcing the

original administrative decision before bringing suit in federal

court because such a holding "would create a situation capable of

repetition, evading review."

.3

The parent appellants' argument is plainly incorrect.

The administrative judge did not resolve a dispute about the 2018-

2019 school year, but ordered three things pursuant to an agreement

by the parties: (1) that the DOE fund GAJVM's tuition at CADEI for

the 2017-2018 school year; (2) that the parties meet to draft an

IEP for 2017-2018; and (3) that the parties meet to draft an IEP

3 The district court did not rest on Nieves-Márquez, but on the Third Circuit Central Dauphin School District case.

.

- 15 - for 2018-2019. This order did not specify any particular services,

such as ABA, that GAJVM needed to receive to be provided with a

FAPE. It did not say that the 2018-2019 IEP must be identical to

the 2017-2018 IEP. The parents seek to do more than enforce the

terms of the February 2018 order, and they do not fall into the

Nieves-Márquez exception.

In Nieves-Márquez, a hearing officer had already

evaluated the student's IEP and had determined that a particular

service was necessary in order to provide a FAPE. 353 F.3d at

117–18. Here, no administrative judge has been given the

opportunity to evaluate whether GAJVM's IEP, or any of the proposed

IEPs, provides a FAPE. The administrative judge's order to hold

meetings to create GAJVM's IEPs is not a determination as to

whether those IEPs provide a FAPE. This course of proceedings has

upset the IDEA's "carefully calibrated balance," Frazier,

; instead of having an educational specialist evaluate the

proposed 2018-2019 IEP, the district court made the determination

as to whether a FAPE was provided without the benefit of

administrative findings. This is precisely what the IDEA's

exhaustion requirement exists to prevent.

We note that this case has been in federal court for

nearly four years, when it could and should have been more

expeditiously resolved through the administrative process.

- 16 - The district court erred in finding that the parents did

not need to exhaust their administrative remedies.4 Because we

find that this case should have been dismissed, we do not address

the parent appellants' arguments on appeal as to why the district

court was incorrect to find that the proposed IEP supplied a FAPE,

to deny stay-put placement at Starbright Academy, and to order

exhaustion of administrative remedies should the parties fail to

reach agreement.

4 We note the disagreement among the circuits as to whether the IDEA's exhaustion requirement is jurisdictional or is a claims processing rule to be dealt with under Rule 12(b)(6). First Circuit precedent characterizes it as jurisdictional. See Christopher W. v. Portsmouth Sch. Comm.,

(1st Cir. 1989) (finding that failure to exhaust administrative remedies left the court without jurisdiction to hear the merits of the case, in a case brought under a prior iteration of the IDEA known as the EHA); but see Frazier,

(affirming dismissal for failure to exhaust on 12(b)(6) motion and calling exhaustion a "condition precedent to entering a state or federal court."). Some circuits have concluded that it is a non- jurisdictional rule, which can be waived if not raised. See, e.g., Payne v. Peninsula Sch. Dist.,

(9th Cir. 2011) (en banc), overruled on other grounds by Albino v. Baca,

(9th Cir. 2014); Mosley v. Bd. Of Educ. of City of Chicago,

(7th Cir. 2006); N.B. by D.G. v. Alchua Cnty. Sch. Bd.,

(11th Cir. 1996). Others have held that it is a jurisdictional requirement. See, e.g., Ventura de Paulino v. New York City Dep't of Educ.,

, 530 (2d Cir. 2020); MM ex rel. DM v. Sch. Dist. of Greenville Cnty.,

, 536 (4th Cir. 2002). Because the DOE properly raised the parents' failure to exhaust throughout the litigation below and on appeal, whether or not this exhaustion requirement is jurisdictional is not dispositive in this case, and we need not delve into this question now. See Muskrat v. Deer Creek Pub. Schs.,

(10th Cir. 2013) (declining to decide whether IDEA exhaustion is jurisdictional where defendants had raised the exhaustion requirement below and on appeal). Whether or not this requirement is jurisdictional matters not.

- 17 - III.

For the foregoing reasons, we vacate the district

court's judgment and remand with instructions to dismiss. No costs

are awarded.

- 18 -