United States District Court, D. Kansas
TONI R. DONAHUE, Plaintiff,
KANSAS BOARD OF EDUCATION, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
plaintiff Toni Donahue requests administrative review under
the Individuals with Disabilities Education Act
(“IDEA”) and Kansas statutes. (Doc. 1.) Plaintiff
asks the court for reversal of orders by both the Hearing
Officer and Appeal Review Officer.
is the mother of a child covered by the IDEA. Defendant
Olathe School District USD No. 233 (“District”)
is the district where plaintiff's child previously
attended school. Plaintiff filed a due process complaint with
defendant District between October 23, 2017 and October 30,
2017. The effective filing date is disputed.
began procedures for a due process hearing under the IDEA on
October 30, 2017. A Hearing Officer was appointed on November
7, 2017. Defendant responded to plaintiff's due process
complaint that same day and filed both a Notice of
Insufficiency and an amended response on November 9, 2017.
Defendant's Notice of Insufficiency argued that
plaintiff's due process complaint was missing information
required by statute, and that plaintiff's complaint
should be dismissed due to the insufficiency.
Hearing Officer dismissed plaintiff's due process
complaint as insufficient on November 14, 2017. Plaintiff
filed an appeal on December 18, 2017, and the Appeal Review
Officer dismissed plaintiff's case on January 2, 2018.
The Appeal Review Officer concluded that plaintiff's
appeal was untimely and that plaintiff had not shown good
cause for filing an appeal outside the deadlines required by
now asks the court to reverse, arguing that the Hearing
Officer applied an incorrect procedural timeline and that the
proceedings below were tainted by partiality. Defendant
argues that the proceedings below were valid, that
plaintiff's untimely appeal resulted in a failure to
exhaust administrative remedies, and that this court
accordingly lacks subject matter jurisdiction.
plaintiff proceeds pro se, the court construes his or her
filings liberally, but does not assume the role of an
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
asks the court to dismiss for lack of subject matter
jurisdiction due to insufficient exhaustion of administrative
remedies, and to award attorneys' fees for
plaintiff's allegedly unreasonable litigation. Plaintiff
argues that the court already found that she had exhausted
her administrative remedies, and alternatively states that
exhaustion should be excused as futile.
court follows the Tenth Circuit's treatment of
administrative exhaustion as a jurisdictional
requirement. Cudjoe v. Indep. Sch. Dist. No.
12, 297 F.3d 1058, 1063 (10th Cir. 2002) (“As this
court must always satisfy itself of jurisdiction before
addressing the merits of a claim, we turn to the exhaustion
issue first.”); Urban v. Jefferson Cty. Sch. Dist.
R-1, 89 F.3d 720, 724 (10th Cir. 1996) (treating
exhaustion as prerequisite for subject matter jurisdiction);
Hayes v. Unified Sch. Dist. No. 377, 877 F.2d 809,
810 (10th Cir. 1989) (noting exhaustion as jurisdictional
under predecessor statute). The court's prior order did
not address exhaustion, and noted that full consideration of
the case was generally impeded by an underdeveloped factual
background, in part because plaintiff's complaint
contained few factual allegations. (Doc. 79, at 1.) The
parties have since supplemented the administrative record and
provided briefing. (Docs. 87; 112; 119; 120; 121-1).
the IDEA, a due process complaint is first heard by
“the State educational agency or by the local
educational agency.” 20 U.S.C. § 1415(f). An
aggrieved party may appeal that decision to “the State
educational agency” for a final decision. Id.
§ 1415(g), (i)(1). Any party aggrieved by that final
decision “shall have the right to bring a civil
action.” Id. § 1415(i)(2)(A). Additional
state review measures are not required to exhaust
administrative remedies. See M.M. ex rel. Moore v.
Unified Sch. Dist. No. 368, No. 07-2291-JTM, 2008 WL
4950987, at *12 (D. Kan. Nov. 18, 2008). Exhaustion of
administrative remedies is not required if exhaustion
“would be futile or fail to provide adequate
relief.” Chavez ex rel. M.C. v. N.M. Pub. Educ.
Dep't, 621 F.3d 1275, 1280-81 (10th Cir. 2010)
(citing Ass'n for Cmty. Living in Colo. v.
Romer, 992 F.2d 1040, 1044 (10th Cir. 1993)). ...