UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
RAMON K. JUSINO and ANN M. JUSINO,
Plaintiffs, MEMORANDUM AND ORDER against, 22-cv-853 (LDH) (ST) NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendants.
LASHANN DEARCY HALL, United States District Judge:
Ramon K. Jusino and Ann M. Jusino (“Plaintiffs”), proceeding pro se, bring the instant
action against the New York City Department of Education (“DOE” or “Defendant”), alleging
violations of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act
(“Section 504”), the New York State Human Rights Law (“NYSHRL”), and the New York City
Human Rights Law (“NYCHRL”). On September 29, 2023, the Court granted Defendant’s
motion pursuant to Federal Rules of Civil Procedure 12(b)(6) 1 for dismissal of Plaintiff’s claims
regarding the incorporation of a Rapid Prompting Method (“RPM”) accommodation into their
son, W.J.’s, Individualized Education Program (“IEP”) for the 2020-2021 and 2021-2022 school
years. Plaintiffs move pursuant to Federal Rule of Civil Procedure 60(b) and Local Civil Rule
6.3 for reconsideration of the Court’s Order.
1 Although Defendants only sought dismissal pursuant to Rule 12(b)(6), the Court sua sponte granted dismissal for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), due to Plaintiffs’ failure to exhaust administrative remedies under the IDEA. Jusino v. New York City Dep’t of Educ., No. 22-CV-853, 2023 WL 6385703, at *3 n.2 (E.D.N.Y. Sept. 29, 2023).
BACKGROUND 2
Plaintiffs are the parents of an autistic student, W.J., who was enrolled at a school
established for students with special needs. (Compl. ¶¶ 3, 16, ECF No. 1.) Plaintiffs, along with
the school’s psychologist, determined that W.J. would benefit most from a teaching method
known as Rapid Prompting Method (“RPM”), however, Defendant failed to incorporate RPM
into W.J.’s individualized educational program (“IEP”). (Id. ¶¶ 24, 38, 42.) Plaintiffs filed a due
process complaint on February 28, 2018. (Id. ¶ 43.) On October 16, 2018, Impartial Hearing
Officer (“IHO”) John Farago issued a decision directing Defendant to incorporate RPM into
W.J.’s IEP and to reimburse Plaintiffs for the costs of providing RPM services to W.J. during the
school years between 2015 and 2019. (Id. ¶ 52.) Defendant added the RPM accommodation
into W.J.’s IEP for the 2019-2020 year. (Id. ¶ 54.) On July 6, 2019, Plaintiffs filed a second due
process complaint regarding the implementation of the RPM accommodation. (Id. ¶ 61.)
Plaintiffs allege that, in the hearing before IHO Edgar De Leon, Defendant falsely represented
that it had been providing W.J. with six hours of RPM per day. (Id. ¶¶ 62–70.) Based on these
false statements, on May 24, 2020, IHO De Leon issued a decision stating that Defendant had
properly utilized the RPM accommodation in W.J.’s IEP and that W.J. was receiving a free
appropriate public education (“FAPE”). (Id. ¶ 69.) Plaintiffs appealed this decision to the Office
of State Review. (Id. ¶ 71.) On August 6, 2020, State Review Officer (“SRO”) Justyn P. Bates
affirmed that Defendant utilized the RPM in W.J.’s 2019-2020 IEP, as required by the October
16, 2018 decision, and should continue to do so. (Id. ¶¶ 72–75.) Thereafter, on August 12,
2 The Court assumes the parties’ general familiarity with this litigation and recites only the facts relevant to Plaintiff's reconsideration motion.
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2020, Plaintiffs discovered that Defendant was not implementing the RPM accommodation with
W.J. because it had unilaterally revised W.J.’s 2019-2020 IEP on April 3, 2020 to remove the
use of RPM. (Id. ¶ 81.) Plaintiffs filed a third due process complaint on August 14, 2020. (Id. ¶
83.) At a subsequent related proceeding, Defendant conceded that, although it previously
claimed that it gave W.J. the RPM accommodation for six hours a day at school in accordance
with the IEP, it had not actually provided W.J. with the RPM accommodation for the 2019-2020
school year. (Id. ¶¶ 88–90.) On August 31, 2021, IHO Mindy Wolman issued a decision
holding that Defendant was obligated to utilize the RPM accommodation in W.J.’s IEP and
failed to meaningfully do so for the 2019-2020 school year. (Id. ¶¶ 90–93.) IHO Wolman
directed Defendant to reimburse Plaintiffs for the costs associated with home-based RPM
services for the 2019-2020 school year. (Id. ¶ 91.)
Plaintiffs filed an action with this Court on September 18, 2020, requesting that the Court
reverse the decision of SRO Bates and enjoin Defendant to continue reimbursing Plaintiffs for
the cost of RPM services. See Complaint, Jusino et al. v. New York City Department of
Education et al., 20-cv-4387 (E.D.N.Y. Sept. 18, 2020) (“Jusino I”). After IHO Wolman issued
her decision, the Court denied Plaintiffs’ request for an injunction as moot and directed
Defendant to reimburse Plaintiffs for the cost of providing RPM services to W.J. throughout the
pendency of the litigation regarding W.J.’s IEP for the 2019-2020 school year. Order, Jusino I,
20-cv-4387 (E.D.N.Y. Jan. 5, 2022), amended, Order, Jusino I, 20-cv-4387 (E.D.N.Y. Mar. 15,
2022). Plaintiffs filed the instant action on February 15, 2022, alleging that Defendant’s refusal
to provide W.J. with RPM services amounted to discrimination and retaliation in violation of the
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ADA and Section 504, and that Plaintiffs are entitled to compensatory and punitive damages.
(Compl. ¶¶ 115–27.)
On September 29, 2023, the Court granted Defendant’s partial motion to dismiss, holding
that the Court lacks subject matter jurisdiction over Plaintiffs’ claims with respect to the 2020-
2021 and 2021-2022 school years because Plaintiffs failed to exhaust their administrative
remedies under the Individuals with Disabilities Education Act (“IDEA”) with respect to these
school years, and Plaintiffs failed to allege that it would have been futile to do so. Jusino v. New
York City Dep’t of Educ., No. 22-CV-853, 2023 WL 6385703 (E.D.N.Y. Sept. 29, 2023).
STANDARD OF REVIEW
Rule 60 of the Federal Rules of Civil Procedure allows courts to relieve a party from a
final judgment on the basis of several specified circumstances, including mistake, newly-
discovered evidence, “fraud ..., misrepresentation, or misconduct by an opposing party,” or “any
other reason that justifies relief.” Fed. R. Civ. P. 60(b). “The standard for granting ... a motion
[for reconsideration] is strict, and reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court overlooked ... matters, in other
words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader
v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds justifying
reconsideration are an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” See Virgin Atl. Airways, Ltd. v.
Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (internal quotation marks and citation
omitted). A motion for reconsideration is not a vehicle for relitigating already-decided issues.
Maldonado v. Local 803 I.B. of Tr. Health & Welfare Fund, 490 F. App’x 405, 406 (2d Cir.
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2013) (“A Rule 60(b) motion is properly denied where it seeks only to relitigate issues already
decided.” (citation omitted)).
DISCUSSION
Plaintiffs move for reconsideration on the grounds that (1) the Court overlooked critical
facts supporting Plaintiff’s futility exception argument and (2) the Supreme Court’s holding in
Fort Bend County, Texas v. Davis precludes the Court from dismissing Plaintiff’s claim pursuant
to Rule 12(b)(1) for failure to exhaust their administrative remedies under the IDEA. (Pls.’ Mot.
for Reconsideration (“Pls.’ Mot.”) at 1, ECF No. 25.) The Court disagrees.
I. Futility Exception
Plaintiffs contend that the Court “incorrectly minimized” or ignored allegations relevant
to their argument that their claims were exempt from the IDEA’s exhaustion requirement
because the exhaustion of administrative remedies would have been futile. (Pl.’s Mot. at 1–4.)
Specifically, Plaintiffs point the Court to allegations that they filed three due process complaints
and an appeal regarding W.J.’s 2019-2020 IEP and that, despite the issuance of multiple orders
“affirm[ing] and reaffirm[ing] Defendant’s obligation to implement RPM into [W.J.’s]
curriculum,” Defendant repeatedly made false statements and misleading representations
suggesting that the DOE was complying with these orders, and then continuously failed to do so.
(Id. at 2.) The Court did not overlook these facts in its analysis, these facts simply do not alter
the conclusion of the Court.
Contrary to Plaintiffs’ proposition in the instant motion, in their opposition to the motion
to dismiss, Plaintiffs indeed offered little to support their claim that a futility exemption was
warranted with respect to the 2020-2021 and 2021-2022 school years. (See Pl.’s Opp. Mot.
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Dismiss at 10–12, ECF No. 19.) Plaintiffs argued that exhaustion of administrative remedies
would have been futile because (1) Plaintiffs filed multiple due process complaints with respect
to the RPM accommodation in W.J.’s 2019-2020 IEP, (2) three IHOs and an SRO reaffirmed
that Defendant was obligated to incorporate RPM into W.J.’s 2019-2020 IEP, and (3) IHO
Wolman told Plaintiffs that, aside from issuing an order, “there’s not much that [she] could do to
force [Defendant] to implement an order.” (See id.) The Court considered each of these
allegations. However, even with a liberal construction of the entire complaint, the Court
determined that the futility exception did not apply. See Jusino, 2023 WL 6385703, at *1–2, *6–
7, *7 n.4. Specifically, the Court highlighted that (1) Plaintiffs had successfully used the
administrative process repeatedly for the school years between 2015 and 2019, (Id. at *6), (2)
Plaintiffs made no allegations of systemic discrimination, (Id.), and (3) Plaintiffs failed to submit
copies of W.J.’s 2020-2021 and 2021-2022 IEPs, from which the Court could infer the specific
requirements that Defendants were to follow for those school years (Id. at *7.).
Plaintiffs now argue that the Court “completely ignored Plaintiffs’ allegations that
Defendant had offered misleading statements and false sworn testimony regarding the
implementation of RPM.” (Pls.’ Mot. at 4.) Notably, Plaintiffs did not argue this fact in their
opposition. 3 In any event, the Court made explicit reference to Defendant’s concession that it
“did not utilize the RPM method in any of W.J.’s classes, though it was obligated to do so”
elsewhere in its opinion. Jusino, 2023 WL 6385703, at *2. That the Court did not reference it in
its futility analysis does not call for reconsideration. That said, to be plain, the fact that
3 Plaintiffs only refer to Defendant’s false statements a single time in the “Procedural History” portion of their opposition to the motion to dismiss and made no effort to tie this allegation to their futility argument. (Pls.’ MTD Opp. at 5.) 6
Defendant had misled IHO De Leon and SRO Bates in hearings regarding W.J.’s
accommodation for the 2019-2020 school year doesn’t serve to alter the Court’s conclusion. As
the Court noted, Plaintiffs prevailed on the claims they brought against Defendant in the
administrative proceedings, including a favorable determination made after Defendant’s alleged
misrepresentation was revealed. The Court maintains that the futility exception does not apply.
II. Lack of Subject Matter Jurisdiction
The Court is also unpersuaded by Plaintiffs’ argument that the Court’s dismissal of their
claim due to lack of subject matter jurisdiction was clearly erroneous in light of the Supreme
Court’s decision in Fort Bend County, Texas v. Davis, (see Pls.’ Mot. at 1), which held that
exhaustion provisions in Title VII are mandatory claims processing rules and not jurisdictional
deficiencies subject to dismissal under Rule 12(b)(1). See Fort Bend Cnty, Texas v. Davis, 587
U.S. 541, 550–51 (2019). Plaintiffs contend that the determination of whether they exhausted
their administrative remedies under the IDEA is a “merits-related inquiry” that cannot be the
basis for a Rule 12(b)(1) dismissal. (Pls.’ Mot. at 1.) That assertion is unsupported by case law
in this circuit.
The Supreme Court in Fort Bend held that, in the context of a Title VII claim, the
requirement to file a charge with the EEOC prior to bringing a case in federal court is a
mandatory claims processing rule and not a jurisdictional bar that deprives the federal court of
subject matter jurisdiction. Fort Bend Cnty., 587 U.S. at 550–51. Plaintiffs fail to direct the
Court to any case law that might suggest that this holding applies to claims under the IDEA.
Although the Second Circuit has considered the question, it has not expressly overturned its prior
holdings that a plaintiff’s failure to exhaust administrative remedies under the IDEA deprives the
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federal court of subject matter jurisdiction. See Ventura de Paulino v. New York City Dep’t of
Educ., 959 F.3d 519, 530 (2d Cir. 2020), cert. denied, 141 S. Ct. 1075 (2021), reh’g denied, 141
S. Ct. 1530 (2021) (“Although we have questioned more recently the supposed jurisdictional
nature of the exhaustion requirement [under the IDEA] . . . we are arguably bound by those
earlier statements.”); see also K.M. v. Adams, No. 20-4128, 2022 WL 4352040, at *3 (2d Cir.
Aug. 31, 2022), cert. denied, 143 S. Ct. 2658 (2023) (“Because the [plaintiffs] cannot point to
any non-waived basis on which to excuse their failure to exhaust their administrative remedies as
required by the IDEA, the district court properly concluded that it lacked subject-matter
jurisdiction over [the plaintiffs’] IDEA claims.”). In fact, the Second Circuit in Ventura
explicitly declined to decide whether its prior holdings, that failure to satisfy the IDEA’s
exhaustion requirement is a jurisdictional bar, remain good law. See id. at 551 n.44 (“[W]e are
not forced to decide whether our precedent in Polera and Murphy, which labels the IDEA’s
exhaustion requirement as a rule affecting subject matter jurisdiction rather than an ‘inflexible
claim-processing’ rule that may be waived or forfeited, remains good law ... because there can be
no claim of waiver or forfeiture here.”) (internal citation and alteration omitted).
Even assuming, arguendo, that the Supreme Court’s holding in Fort Bend establishes that
the IDEA’s exhaustion requirement is a mandatory claims processing rule, this would not alter
the Court’s conclusion because Plaintiffs’ failure to exhaust administrative remedies is still fatal
to their claim. If a claims-processing rule is mandatory, “a court must enforce the rule if a party
‘properly raise[s]’ it.” Fort Bend, 587 U.S. at 549 (citing Eberhart v. United States, 546 U.S. 12,
19 (2005)). Mandatory claims processing rules are subject to the doctrine of waiver and
forfeiture. Eberhart, 546 U.S. at 19 (“These claim-processing rules thus assure relief to a party
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properly raising them, but do not compel the same result if the party forfeits them.”); see also
Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198, 203 (2d Cir. 2007). Plaintiffs do
not contend that Defendant waived or forfeited the non-exhaustion argument, and it is clear to
the Court that Defendant did not, given that it was raised as the grounds for its motion to dismiss.
(See Def.’s Mot. Dismiss at 9–12, ECF No. 16.) “Though not jurisdictional, mandatory claim-
processing rules remain mandatory.” Donnelly v. Controlled Application Rev. & Resol. Program
Unit, 37 F.4th 44, 56 (2d Cir. 2022). Therefore, because Defendant raised Plaintiffs’ failure to
exhaust administrative remedies as a defense to Plaintiffs’ claims, the Court must enforce it. Id.
(“The Supreme Court has repeatedly said that if a party properly raises a mandatory claim-
processing rule, the rule is unalterable.”) (citations and alterations omitted). So regardless, the
holding in Fort Bend would not save Plaintiff’s claim.
* * *
Nevertheless, although Plaintiffs’ asserted grounds for reconsideration fail, the Court
vacates its September 29, 2024 ruling on separate grounds, due to an intervening change in the
law. On June 5, 2024, the Second Circuit in Simmons v. Murphy abrogated its previous holdings
that the IDEA “requires exhaustion of claims premised on the denial of a FAPE even where such
claims seek a remedy – such as compensatory damages – that the IDEA does not provide.” No.
23-288-CV, 2024 WL 2837625, at *3 (2d Cir. June 5, 2024); see Cave v. E. Meadow Union Free
Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008); Polera v. Bd. of Educ. of Newburgh Enlarged City
Sch. Dist., 288 F.3d 478, 487–88 (2d Cir. 2002). The Second Circuit found that the Supreme
Court’s recent holding in Luna Perez v. Sturgis Public Schools “adopted a narrower view of the
IDEA exhaustion requirement,” holding that the requirement “applies only to claims that seek a
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remedy available under the IDEA.” Simmons, 2024 WL 2837625, at *3 (citing Luna Perez v.
Sturgis Public Schools, 598 U.S. 142 (2023)) (emphasis in original). In Luna Perez, the
Supreme Court considered the IDEA’s exhaustion provision alongside the provision of the IDEA
stating that “nothing in [the IDEA] shall be construed to restrict the ability of individuals to seek
remedies under the ADA or other [f]ederal laws protecting the rights of children with
disabilities.” Luna Perez, 598 U.S. at 146 (internal citations and alterations omitted). The
Supreme Court rejected the interpretation that the IDEA requires Plaintiffs to exhaust
administrative remedies “before [they] may pursue a suit under another federal law if that suit
seeks relief for the same underlying harm [the] IDEA exists to address.” Id. (emphasis in
original). Instead, the Court in Luna Perez adopted the interpretation that the IDEA requires a
plaintiff to exhaust administrative procedures “only to the extent he pursues a suit under another
federal law for remedies [the] IDEA also provides,” and therefore the exhaustion requirement
does not foreclose a plaintiff’s claims under the ADA and Section 504 when, for example, these
claims “seek[] only compensatory damages, a remedy everyone . . . agrees [the] IDEA cannot
supply.” Id. Based on the Supreme Court’s holding, the Second Circuit determined that claims
seeking compensatory and punitive damages under the ADA and Section 504, “need not be
exhausted, even if such claims seek to redress the denial of a FAPE.” Simmons, 2024 WL
2837625 at *3. Therefore, in the instant action, Plaintiffs’ claims for compensatory and punitive
damages under the ADA and Section 504 for the school years after 2019-2020 are not subject to
the IDEA’s exhaustion requirement and must not be dismissed for failure to exhaust those
remedies.
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CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for reconsideration is GRANTED. The
Court vacates its decision on Plaintiffs’ claims for compensatory and punitive damages pursuant
to the ADA and Section 504 with regard to the 2020-2021 and 2021-2022 school years. The
Clerk of Court is respectfully directed to mail a copy of this Order to pro se Plaintiffs.
SO ORDERED.
Dated: Brooklyn, New York /s/ LDH September 30, 2024 LaSHANN DeARCY HALL United States District Judge
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