353 F.3d 108 (1st Cir. 2003), 02-2721, Nieves-Marquez v. Puerto Rico

Docket Nº:02-2721
Citation:353 F.3d 108
Party Name:Nieves-Marquez v. Puerto Rico
Case Date:December 24, 2003
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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353 F.3d 108 (1st Cir. 2003)

Joshua NIEVES-MÁRQUEZ; Jess Nieves; Leonor Márquez, Plaintiffs, Appellees,

v.

The Commonwealth of PUERTO RICO; Department of Education of the Commonwealth of Puerto Rico, through its Secretary, Hon. César Rey Hernández; Elsie Trinidad; Edna Rosa-Colón, Defendants, Appellants.

No. 02-2721.

United States Court of Appeals, First Circuit

December 24, 2003

Heard Nov. 3, 2003.

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Eduardo A. Vera-Ramírez, with whom Eileen Landron-Guardiola, Anabelle Rodriguez, Secretary of Justice, and Ivonne Palerm-Cruz, Deputy Secretary, were on brief, for appellants.

Alfredo Fernandez-Martínez, for appellees.

Kevin Russell, Attorney, Civil Rights Division, U.S. Department of Justice, with whom Jessica Dunsay Silver, Attorney, Civil Rights Division, U.S. Department of Justice, and R. Alexander Acosta, Assistant Attorney General, were on brief, for the United States as intervenor.

Before TORRUELLA, LYNCH, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

Joshua Nieves-Márquez, a developmentally delayed and hearing-impaired teenager who attends public school in Puerto Rico, filed this federal lawsuit to compel officers of the Department of Education of the Commonwealth of Puerto Rico to provide

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him a sign language interpreter ordered for him several months earlier by a hearing officer under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. The suit asserted claims under IDEA; Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 1210 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; 42 U.S.C. § 1983; and two provisions of the Puerto Rico Civil Code.

In Puerto Rico, all public elementary schools are run by the Commonwealth's Department of Education. The Department, which receives millions of dollars in federal funding for special needs students each year, chose not to appeal from the hearing officer's order. Although the Department provided an interpreter for the rest of that school year, it stopped providing one when Joshua began the next school year, even though it conceded his continued need for one. When his parents, his special education team, and the superintendent of his school affirmed that need and requested that an interpreter be provided promptly, the Department did not respond.

When sued, the Commonwealth, the Department of Education, and the individual defendants replied that the federal court lacked jurisdiction under the Eleventh Amendment. They also sought dismissal of the case on grounds of untimeliness, exhaustion, and lack of statutory standing, and said that the conditions for preliminary injunctive relief had not been met. Unconvinced, the trial court, after hearing evidence, granted the preliminary injunction and denied the defendants' motion to dismiss.

The defendants appeal, challenging the court's grant of a preliminary injunction and its denial of their motion to dismiss based on Eleventh Amendment immunity. Forced to reach the Eleventh Amendment question, we hold that the defendants waived any Eleventh Amendment immunity, at least as to § 504 claims, by accepting federal educational funding. Accordingly, we affirm.

I.

The procedural history of this case and evidence presented at the preliminary injunction hearing before the district court on October 8, 2002 are described below.

On August 14, 2001, Joshua Nieves-Márquez started second grade at the María Bas de Vásquez School, a public school in Bayamón, Puerto Rico. Joshua suffers from moderate to severe bilateral hearing loss. He had just transferred to the María Bas de Vásquez School, which serves mostly hearing students, from a school for the deaf. He was twelve years old at the time and did not know how to read.

In the summer before Joshua started second grade, his parents, Jess Nieves and Leonor Márquez, at the recommendation of a teacher, requested a certified sign language interpreter to assist Joshua in the classroom. Joshua's mother is a special education teacher. After the school failed to provide an interpreter, Joshua's parents filed an administrative complaint under 20 U.S.C. § 1415(b)(6) against the Puerto Rico Department of Education on November 6, requesting that Joshua be assigned his own sign language interpreter. On December 4, 2001, the administrative judge found that Joshua's need for a certified sign language interpreter was "urgent" and ordered the school to provide one. The Department of Education did not appeal the decision. During the second semester of the second grade, from January through May of 2002, Joshua shared a certified sign language interpreter with another student in his class. Although Joshua's mother was not fully satisfied

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with the sharing of an interpreter, she accepted the situation.

When Joshua entered the third grade in August 2002, however, the defendants no longer made a sign language interpreter available to him. No advance notice of this change was given to Joshua or his parents. On August 9, 2002, Joshua's parents attended a "campo" meeting with specialists, teachers, and the director of the school to analyze Joshua's special needs and the services he required. As best we can tell, this was the annual team meeting and evaluation required under IDEA, 20 U.S.C. § 1414(d)(4)(A); the defendants have put forth no evidence otherwise. The meeting participants agreed that Joshua needed an interpreter for the third grade and that the need was urgent.

Joshua's mother notified the superintendent of María Bas de Vásquez School of the situation in August after school started and asked that a sign language interpreter be provided to her son. He told her that he did not have one available but wrote a letter on August 9 to defendant Edna Rosa-Colón, the director of the Bayamón Region of the Department of Education. The letter stated that "[w]e hope that [Joshua] can be helped to be able to solve [his need for a sign language interpreter] as soon as possible and permanently." Joshua's mother hand-delivered the letter to Rosa-Colón's secretary on August 22. Joshua and his parents received no response from the Department of Education and no explanation as to whether it was taking steps to find an interpreter for Joshua.

On October 1, 2002, the plaintiffs filed a complaint in federal district court against the Commonwealth of Puerto Rico; the Puerto Rico Department of Education, through its Secretary, Cesár Rey-Hernández; the director of the María Bas de Vásquez School, Elsie Trinidad; and the director of the Bayamón Region of the Department of Education, Rosa-Colón. The complaint sought a preliminary and permanent injunction as well as compensatory and punitive damages. On the same day that the complaint was filed, Joshua and his parents also moved for a temporary restraining order and preliminary injunction requiring the immediate provision of a sign language interpreter. The district court held an evidentiary hearing on the motion on October 8, 2002.

At the evidentiary hearing, defense counsel admitted to the district court that "we acknowledge [Joshua] needs ... an assistant to interpret for him beside[s] the interpretation that the school teacher can do." Joshua's third-grade teacher testified that she has only some basic knowledge of sign language and is not a certified interpreter. Joshua, she testified, is quite deaf and can only sometimes read lips and vocalize. At thirteen, he cannot read and can write only basic words, such as "mom" and "bathroom." Because the class has only nine students, the teacher tries to communicate with Joshua face-to-face, but, in her view, Joshua needs a sign language interpreter. She testified that, from what she understood, her view was shared by the school director and superintendent.

In addition, an audiologist testified that Joshua has difficulty understanding words spoken to him. Based on his evaluation of Joshua, he testified that even with a hearing aid, Joshua would not be able to hear the teacher in most classroom situations unless an FM system were available to transmit the sound of the teacher's voice directly into his hearing aid. No FM system was available in his classroom. The audiologist, who received referrals from the Department, further testified that the majority of students with hearing loss of Joshua's type communicate much better

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through sign language than through verbal communication and lip reading.

Joshua's mother testified that his hearing loss has retarded his learning. For the past five years, he has worn a hearing aid, which his parents finally obtained after a series of disputes with the Department. She testified that she transferred Joshua from the school for the deaf before second grade because she was aware that services at that school would end for Joshua when he reached the age of twenty-one and she feared that he would never learn to read or be prepared for the working world if he stayed there.

On October 9, the defendants moved to dismiss the plaintiffs' IDEA, ADA, and Rehabilitation Act claims based on Eleventh Amendment immunity. Despite Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the defendants did not confine their motion to dismiss to the plaintiffs' damages claims but requested that the case against all defendants be dismissed in its entirety based on Eleventh Amendment immunity. 1 In addition, they moved to dismiss all four federal claims on various other grounds, arguing (1) that the plaintiffs were not "parties aggrieved" with statutory standing under IDEA's right-to-sue provision, 20 U.S.C. § 1415(i)(2), and such standing was necessary to sue under IDEA or any other federal statute, (2) that the plaintiffs had failed to exhaust administrative remedies under IDEA and thus could not sue under IDEA or any other federal statute, and (3) that...

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