Horen v. Board of Educ. of Toledo City School, Case No. 3:07CV03779.

• Decision Date: 30 July 2008
• Docket Number: Case No. 3:07CV03779.
• Citation: 568 F.Supp.2d 850
• Parties: Glenn HOREN, et. al., Plaintiff/Appellants, v. BOARD OF EDUCATION OF the TOLEDO CITY SCHOOL DISTRICT, et. al, Defendants/Appellees.
• Court: U.S. District Court — Northern District of Ohio

568 F.Supp.2d 850

Glenn HOREN, et. al., Plaintiff/Appellants, v. BOARD OF EDUCATION OF the TOLEDO CITY SCHOOL DISTRICT, et. al, Defendants/Appellees.

Case No. 3:07CV03779.

United States District Court, N.D. Ohio, Western Division.

July 30, 2008.

COPYRIGHT MATERIAL OMITTED

Glenn S. Horen, Toledo, OH, pro se.

Joanne E. Horen, Toledo, OH, pro se.

Lisa E. Pizza, Randy L. Meyer, Spengler Nathanson, Toledo, OH, Scott M. Campbell, Office of the Attorney General, Education Section, Columbus, OH, for Defendants/Appellees.

ORDER

JAMES G. CARR, Chief Judge.

This case is the outcome of Joanne and Glenn Horen's due process complaint. Filed under the Individuals With Disabilities Education Act [IDEA], 20 U.S.C. §§ 1415 and its correlative state provision, O.R.C. § 3323.05, the complaint, which the Horens instituted on behalf of their minor daughter, D.H., alleged that Toledo Public Schools (TPS or the Board) denied their daughter a free appropriate public education and committed other violations of the applicable statutes. Subsequent appeals and motions bring the case to this court.

Defendants TPS and the Ohio Department of Education (the ODE or the Department) move for dismissal (Docs. 9 & 12), arguing that the Horens failed to properly file their appeal within the state system, thereby depriving the state court, and by extension this court, of jurisdiction. The Department also objects that it is not a proper party. Because I agree that plaintiffs' filing error precludes jurisdiction, I grant the motions to dismiss.

Background

In August, 2006, the Horens filed their due process complaint under 20 U.S.C. §§ 1400, et seq., O.R.C. §§ 5104.01, et seq., O.R.C. §§ 3323.05 et seq., and the implementing regulations at 34 C.F.R. 300.1 et seq. and O.A.C. 3301-51-01 et seq. The complaint resulted in a hearing, for which the ODE appointed an Impartial Hearing Officer (IHO) per O.R.C. § 3323.05(G)(1)(c). Both TPS and the Horens appealed the IHO's decision, leading the ODE to appoint a State Level Review Officer (SLRO) to hear the appeal. During this appeal, the Horens also named the ODE as a defendant, alleging due process violations under IDEA. On October 5, 2007, the SLRO issued a decision dismissing claims against the ODE for lack of jurisdiction.

The Horens appealed the SLRO decision, filing an original notice of appeal with the Lucas County, Ohio, Court of Common Pleas on November 16, 2007. According to Ms. Horen's affidavit, plaintiffs also mailed a notice of appeal to the ODE. Christine Cline, the Mediation/Due Process Coordinator in the Procedural Safeguards Section of the ODE's Office for Exceptional Children, stated that the Department later received a notice of appeal, via U.S. Mail. A stamp indicates that the Department received the notice on November 23, 2007. (Doc. 12-2 at 3).¹ The Board removed the Horens appeal to this court on December 11, 2007. (Doc. 1).

Discussion

1. Standard of Review

Though neither defendant specifies the statutory basis for its motion to dismiss, I interpret both motions as requests for dismissal under Federal Rule of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction). Cf. Molina v. Bd. of Educ. of Sch. Dist. for City of Detroit, 2007 WL 4454928 (E.D.Mich.) ("A Rule 12(b)(1) motion may be appropriate when a plaintiff has failed to exhaust administrative remedies that are a prerequisite to his suit."); cf. also Morales v. U.S., 866 F.Supp. 84, 84-86 (E.D.N.Y.1993) (dismissal under 12(b)(1) for improperly filed suit); Hughes v. Ohio Dep't of Commerce, 114 Ohio St.3d 47, 52, 868 N.E.2d 246 (2007) ("If a certified copy had been served . . . the common pleas court still would have lacked jurisdiction because Hughes did not properly file her notice of appeal.").

It is important to note the distinction between "12(b)(1) motions that attack the complaint on its face and 12(b)(1) motions that attack the existence of subject matter jurisdiction in fact, quite apart from any pleadings." RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996) (quoting Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 890 (3d Cir.1977)). A court's analysis when a Rule 12(b)(1) motion challenges subject matter jurisdiction differs greatly from its review of a Rule 12(b)(6) or Rule 56 motion "[b]ecause at issue in a factual 12(b)(1) motion is the trial court's jurisdiction —its very power to hear the case." Id. As a result "there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id.

The burden of proof to show that jurisdiction exists rests with the plaintiff, no presumption of truth attaches to the plaintiffs allegation, and "the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.

2. Filing Error

The Horens appealed the SLRO's decision under O.R.C. §§ 119.12 and 3323.05.

In reaction to the requirements of the federal IDEA, 20 U.S.C. §§ 1415, et seq., Ohio created § 3323.05 of the Revised Code, which aims to institute and guarantee "procedural safeguards ... with respect to a free appropriate public education." In O.R.C. § 3323.05(G)(1), the General Assembly called on the Ohio Board of Education to establish "[a]n opportunity for parents or a school district to present a due process complaint and request for a due process hearing to the superintendent of the school district ... with respect to ... the provision of a free appropriate public education." The statute also provides parties to a complaint with an opportunity to appeal the "findings and decision rendered" in a hearing "within forty-five days of notification of the decision to the state board." O.R.C. § 3323.05(H). For the appeal, the Board appoints "a state level officer who shall review the case and issue a final order." Id.

In a similar manner, either party can appeal the final order in accordance with O.R.C. § 119.12 "within forty-five days after notification of the order to the court of common pleas in the county in which the child's school district of residence is located."² O.R.C. § 3323.05(H); see also O.A.C. § 3301-51-08(1).

Section 119.12, dictates how a party adversely affected by a final agency order issued under an adjudication can appeal the order. The statute specifies that the party "shall file a notice of appeal with the agency setting forth the order appealed from and the grounds for the party's appeal" and that "[a] copy of the notice of appeal shall also be filed by the appellant with the court." O.R.C. § 119.12.

Interpreting these instructions, the Supreme Court of Ohio held that "the notice of appeal filed with the agency and the notice of appeal filed with the common pleas court are distinct documents." Hughes v. Ohio Dep't of Commerce, 114 Ohio St.3d 47, 52, 868 N.E.2d 246 (2007) (citing Nibert v. Ohio Dep't of Rehab. & Corr., 84 Ohio St.3d 100, 702 N.E.2d 70 (1998)). In Hughes, the plaintiff received notice of the Ohio Department of Commerce's intent to remove her from her job. Id. at 48, 868 N.E.2d 246. On the issuance of the agency's final order of removal, Hughes appealed the decision. Id. In doing so, however, she filed her original notice of appeal with the court of common pleas and a photocopy with the agency. Id.

The Supreme Court of Ohio dismissed the case, in part due to Hughes's failure to file the original notice of appeal with the agency.³ Id. at 52-53, 868 N.E.2d 246. Explaining "the failure to use the word `original' in the notice of appeal rights and in O.R.C. § 119.12, when describing the notice of appeal to be filed with the agency, does not create an ambiguity in the statute," the court held that "the original notice of appeal was to be filed with the agency and that a copy of the notice of appeal was to be filed with the common pleas court." Id. at 52, 868 N.E.2d 246.

In contrast, the Horens claim that they made several "original" individually signed documents which the Lucas County clerk of courts stamped. According to plaintiffs, the apparently identical versions of the "notice of appeal" submitted into evidence by both defendants are the copies of the "original" that the Horens filed with the court and which the court then copied and sent to the ODE and TPS.⁴

The Horens erred in creating numerous "originals" instead of one (as the name implies) and failing to file "a copy" of that original with the court. This mistake may seem to elevate mere form over substance, but the Supreme Court of Ohio has expressly stated that a party adversely affected by an agency opinion must "strictly comply with O.R.C. § 119.12 in order to perfect an appeal." Id. at 52, 868 N.E.2d 246. The Horens failure to comply with O.R.C. § 119.12 deprived the Lucas County Court of Common Pleas of jurisdiction and by extension, deprives this court of jurisdiction as well. See Fed. Nat. Mortg. Ass'n v. LeCrone, 868 F.2d 190, 192 (6th Cir.1989) ("[T]he federal court's exercise of jurisdiction upon removal is derivative—if the state court from whence the action is removed had no jurisdiction then the federal court `receives' none even if original jurisdiction in the federal court would have been proper.").

3. Statute of Limitations

Even if the Horens' failure to file an original notice of appeal with the agency and a copy of that original with the court did not require dismissal, the Horens also failed to meet the required deadline for filing the original with the state agency. Cf. Brickwood Contractors, Inc. v. U.S., 77 Fed.Cl. 624, 629 (2007) (concluding that "a defect in meeting the statute of limitations should be raised by a challenge to the court's jurisdiction. A challenge to the Court's jurisdiction is properly raised by a Rule 12(b)(1) motion").

The Revised Code explains that "[a]ny party aggrieved by the final order of the state level officer may appeal the final order, in accordance with ...