J.R. v. Cox-Cruey

• Decision Date: 06 July 2015
• Docket Number: CIVIL ACTION NO. 14-149-DLB-JGW
• Parties: J.R. PLAINTIFF v. TERRI COX-CRUEY, ET AL. DEFENDANTS
• Court: U.S. District Court — Eastern District of Kentucky

J.R. PLAINTIFF v. TERRI COX-CRUEY, ET AL. DEFENDANTS

CIVIL ACTION NO. 14-149-DLB-JGW

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION AT COVINGTON

July 6, 2015

MEMORANDUM OPINION AND ORDER**************************

I. Introduction

This is an action pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1450, in which Plaintiff J.R.¹ contests the decision of a Kentucky administrative body known as the Exceptional Children Appeals Board ("ECAB"). Defendants Kenton County Board of Education ("KCBE") and several of its named representatives move to dismiss based on two alternative grounds. First, because J.R.'s appeal to the ECAB was denied as untimely, they submit that she has failed to properly exhaust her available administrative remedies, and as such the Court lacks subject matter jurisdiction to hear this case. If jurisdiction is proper, however, Defendants contend that one issue in particular is barred by the doctrine of res judicata; namely, whether J.R. is entitled to free appropriate public education ("FAPE") beyond her 21st birthday.² For the reasons discussed below, Defendants' Motion to Dismiss will be granted.

II. Factual and Procedural Background

J.R. is a 23 year-old female who resides with her parents in Park Hills, Kentucky. (Doc. # 5-2 at 1). In April 2010, during her senior year of high school, she was involved in a serious car accident and suffered a debilitating brain injury. (Id.) As part of the rehabilitation process, her parents began exploring educational opportunities within the Kenton County School District ("KCSD" or the "School District"). (Id. at 2). They eventually learned that J.R. was eligible to attend Dixie Heights High School ("Dixie") in Crestview Hills, Kentucky. (Id. at 2). Her father contacted the school in November 2011 and completed the necessary paperwork to enroll his daughter as a student. (Id.) J.R. started special education classes in January 2012. (Id.) At the time, she was 19 years old and would turn 20 the following month. (Id.)

While at Dixie, J.R. was served by an Individual Education Plan ("IEP") based on the disability category "Traumatic Brain Injury." (Doc. # 1 at 2). Although from the outset the IEP clearly stated that all services would expire upon J.R.'s 21st birthday,³ her parents believed she was entitled by law to remain in school until she reached the age of 22. (Doc. # 5-1 at 2). Thus, on January 30, 2013, through counsel, they contacted the Kentucky Department of Education ("KDE"), Office of Exceptional Children, and requested a due process hearing under the applicable sections of the IDEA, specifically seeking the following relief:

1) The assignment of a hearing officer;

2) An immediate determination that [J.R.] must stay-put in her current educational placement at Dixie Heights High School during the pendency of this action;

3) An Order requiring the Kenton County School District to allow [J.R.] to receive a free appropriate public education until at least her twenty-second birthday;

4) A finding that the termination of [J.R.]'s educational services prior to her twenty-second birthday is a denial of her right to a free appropriate public education;

5) An Order requiring the Kenton County School District to hereinafter make appropriate placement decisions for [J.R.] in accordance with 707 KAR 1:350;

6) Attorney fees for [J.R.]'s attorneys of record; and

7) All such other relief that the hearing officer may deem appropriate.

(Administrative File at 1-3). The KDE selected Paul Whalen as the hearing officer to preside over J.R.'s hearing, which was scheduled to take place towards the end of the 2012-2013 school year. (Administrative File at 4).

Mr. Whalen conducted the first pre-hearing conference on February 6, 2013, at which point the parties agreed to attempt mediation. (Doc. # 5-1 at 2). Following the conference, Mr. Whalen entered a "stay-put" order, allowing J.R. to remain at Dixie beyond her 21st birthday and throughout the parties' mediation attempts. (Id.) When mediation proved unsuccessful, the KCSD moved to dissolve the "stay-put" order, but Mr. Whalen denied that request. (Id.) Instead, he ordered that J.R. would "continue in her current education placement until the end of the 2012-2013 school year," reasoning that "Kentucky Administrative Regulations and practice in the Commonwealth allow students to finish the school year in which they turn age 21." (Administrative File at 24).

The due process hearing began as scheduled on May 21, 2013. (Doc. # 5-1 at 3). On the second day of hearings, J.R. moved for an open-ended extension of the "stay-put" order, which was set to expire later that week. (Administrative File at 66-67). Mr. Whalen denied her request in writing on June 12, 2013. (Id.) While hearings continued, J.R. appealed his decision to this Court and filed a motion for injunctive relief shortly thereafter. (Doc. # 5-1 at 3). A "stay-put" order was required by law, she explained, at least until the due process action was finally resolved (which would not occur until November 2013). (Id.) The Court disagreed, though, ruling on August 13, 2013, that a "stay-put" order was no longer applicable because J.R.'s right to FAPE had expired when she turned 21. J.R. v. Cox-Cruey, Case No. 13-109-DLB, 2013 WL 4101968, at *6 (E.D. Ky. Aug. 13, 2013). J.R. appealed the Court's decision to the Sixth Circuit Court of Appeals, but her notice was dismissed as untimely, as it was filed one day after the thirty-day deadline. (Doc. # 5-2).

Mr. Whalen issued his final due process decision on November 6, 2013, in which he addressed the following nine questions:

1) Should [J.R.] stay-put in [her] current educational placement within the School District during the pendency of this action?

2) Should [J.R.] be deemed eligible to receive a free appropriate public education (FAPE) until at least [her] twenty-second birthday? Is this the correct interpretation of 20 U.S.C. § 1412(a)(A) and related case law?

3) Is the termination of [J.R.'s] educational services (at age 21) a denial of [her] right to a free appropriate public education (FAPE) pursuant to 707 KAR 1:290 and 20 U.S.C. § 1412?

4) Has the School District made appropriate placement decisions for [J.R] in accordance with 707 KAR 1:350?

5) Has the School District failed to ensure that [J.R.] had an appropriate Individual Education Plan (IEP), including extended school year services (ESY) and related services, from the 2011-2012 school year until the present time in violation of 707 KAR 1:320?

6) Whether or not the School District failed to engage in meaningful and appropriate transition services, as defined in 707 KAR 1:002, and in violation of 707 KAR 1:320?

7) Did the School District deny [J.R.] the right to a free appropriate public education in violation of 707 KAR 1:290 for the period November 16, 2011 through January 2, 2012? Is [J.R.] entitled to Compensatory Education for this period?

8) Should [J.R.'s] parents be reimbursed for transportation services they provided [J.R.] while [she] was attending school?

9) Is [J.R.] entitled to attorney's fees?

(See Doc. # 1-2).⁴

With respect to the first six questions, Mr. Whalen's findings were not favorable to J.R. Under the IDEA and Kentucky law, he found that she was not entitled to receive educational services beyond her 21st birthday, and also concluded that the School District had provided appropriate IEPs and meaningful transition services. (Id. at 14-23). As for the seventh question, however, Mr. Whalen awarded compensatory education for a brief period of time between J.R.'s enrollment in November 2011 and the first day of classes in January 2012. (Id. at 23-24). And regarding the eighth question, he found that J.R.'s parents were entitled to reimbursement for transportation services they provided to and from certain school-related activities. (Id. at 24-25). Finally, Mr. Whalen determined that he had no authority under the IDEA to award attorney's fees or costs. (Id. at 25).

Unsatisfied with the outcome, J.R. sent notice of appeal to the KDE's Division of Exceptional Children Services. (Administrative File at 199). Although it appears her petition was mailed within thirty days of Mr. Whalen's final decision, it was not sent by certified mail in accordance with 707 KAR 1:340(12), and the KDE denied her appeal as untimely.⁵ J.R. immediately filed a motion for extension of time, explaining that inclement weather and driving conditions in northern Kentucky had prevented her from using certified mail. (Administrative File at 203). However, Mr. Whalen found that the regulation was unambiguous and compulsory, and promptly denied her request for additional time. (Administrative File at 208-10).

J.R. filed a motion to reconsider Mr. Whalen's decision on December 31, 2013. (Administrative File at 211-13). The parties briefed the issue, and in her reply memorandum J.R. cited to a prior case in which the ECAB chose not to dismiss a student's appeal even though he had failed to comply with the certified mailing requirement. (Administrative File at 218-28). Evidently, Mr. Whalen felt bound by the outcome of that case.⁶ In a brief order noting his duty to respect stare decisis, he reversed his previous position and instructed J.R. to proceed with her appeal, which she did. (Administrative File at 230).

After extensive briefing from both parties, the ECAB issued its decision on June 11, 2014. (Doc. # 5-3). As a threshold matter, it distinguished the decision cited in J.R.'s motion to reconsider and found that the appeal in this case was indeed untimely. (Id. at 5-7). Accordingly, it dismissed her petition and affirmed the findings and conclusions in Mr. Whalen's order of November 6, 2013. (Id.) Recognizing the potential for judicial review, the ECAB also addressed the remaining issues on the merits. (Id. at 1). In doing so, it determined that J.R. was provided with meaningful IEPs and proper transitional services, and that...