Coleman v. Newburgh Enlarged City Sch. Dist. * We direct the clerk to alter the official caption to conform 1 to the caption provided here. 2 1

06-1466-cv
Coleman v. Newburgh Enlarged City Sch. Dist.
* We direct the clerk to alter the official caption to conform 1
to the caption provided here. 2
1
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
3
August Term 2006 4
(Argued: March 7, 2007 Decided: September 25, 2007) 5
Docket Nos. 06-1466-cv(L), 06-1732-cv(XAP) 6
-----------------------------------------------------x 7
ELZIE DESHAWN COLEMAN, 8
9
Plaintiff-Appellee-Cross-Appellant, 10
11
-- v. -- 12
13
NEWBURGH ENLARGED CITY SCHOOL DISTRICT, PETER 14
COPELETTI, Individually and as Principal of Newburgh 15
Free Academy High School, and BOARD OF EDUCATION OF 16
THE CITY OF NEWBURGH SCHOOL DISTRICT, 17
18
Defendants-Appellants-Cross-Appellees.*
19
20
-----------------------------------------------------x 21
22
B e f o r e : WINTER, WALKER and STRAUB, Circuit Judges. 23
24
Appeal from an order of the United States District Court for 25
the Southern District of New York (Stephen C. Robinson, Judge) 26
entered on February 28, 2006, awarding attorneys’ fees and costs 27
in favor of a disabled student as a prevailing party under the 28
Individuals with Disabilities Education Act’s fee-shifting 29
provision, 20 U.S.C. § 1415(i)(3)(B). 30

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2
REVERSED. 1
Judge Straub concurs in the judgment of the Court and files 2
a separate concurring opinion. 3
STEPHEN BERGSTEIN, Bergstein & 4
Ullrich, LLP, Chester, New York 5
(Ostrer Rosenwasser, LLP, Chester, 6
New York, Law Offices of Michael H. 7
Sussman, Goshen, New York, on the 8
brief) for plaintiff-appellee- 9
cross-appellant. 10
11
MARK C. RUSHFIELD, Shaw & Perelson, 12
LLP, Highland, New York for 13
defendants-appellants-cross- 14
appellees. 15
16
17
JOHN M. WALKER, JR., Circuit Judge: 18
19
In this case, a disabled child was subject to discipline by 20
his school district that entitled him to several administrative 21
remedies under the Individuals with Disabilities Education Act 22
(“IDEA”), 20 U.S.C.A. § 1400 et seq., but the exhaustion of which 23
would likely have prohibited him from graduating with his class 24
and, incidently, kept him from participating in extracurricular 25
activities. The principal question we are presented with, simply 26
stated, is whether, under the circumstances of this case, he 27
should have been excused from exhausting his administrative 28
remedies under the IDEA and allowed to go directly into federal 29
court so that, if successful, he could enjoin the school 30
district’s disciplinary action without missing graduation. 31
Plaintiff Elzie Deshawn Coleman, a child with a disability, 32

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3
filed an action alleging that Newburgh Enlarged City School 1
District, Peter Copeletti, individually and as principal of 2
Newburgh Free Academy High School (“NFA”), and the Board of 3
Education of the City of Newburgh School District (collectively, 4
“Defendants”) violated his rights under the IDEA. In particular, 5
Coleman challenged the disciplinary process that led to his 6
suspension from NFA and moved for a preliminary injunction 7
ordering Defendants to reinstate him immediately for the pendency 8
of his administrative appeals. Defendants, in opposing the 9
motion, argued that the district court lacked subject matter 10
jurisdiction because Coleman had failed to exhaust the 11
administrative remedies available to him under the IDEA. The 12
district court for the Southern District of New York (Stephen C. 13
Robinson, Judge) rejected Defendants’ argument on the basis that 14
exhaustion would be futile because Coleman was scheduled to 15
graduate less than two months following the disciplinary hearing 16
and granted Coleman’s motion in an opinion and order dated May 17
17, 2004. See Coleman v. Newburgh Enlarged City Sch. Dist., 319 18
F. Supp. 2d 446 (S.D.N.Y. 2004). Soon thereafter, the district 19
court awarded Coleman $28,431.52 in attorneys’ fees as a 20
prevailing party under the IDEA’s fee-shifting provision, 20 21
U.S.C. § 1415(i)(3)(B). 22
On appeal, Defendants contend, inter alia, that the district 23
court’s award of attorneys’ fees was improper because its 24

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2 The facts are drawn principally from the district court’s 1
opinion and order of May 17, 2004. See Coleman, 319 F. Supp. 2d 2
at 448-50. 3
3 The record reveals only that these criminal charges were 1
resolved on April 28, 2004, not the result. 2
4
determination in Coleman’s underlying action that exhaustion 1
would be futile was error. We agree. The district court should 2
have dismissed Coleman’s complaint. We therefore reverse its 3
award of attorneys’ fees. 4
BACKGROUND2
5
Coleman attended NFA as a disabled student pursuant to an 6
individualized education program (“IEP”) implemented under the 7
IDEA. See 20 U.S.C. § 1414(d). On April 20, 2004, Coleman, an 8
accomplished high school track athlete, was involved in an 9
altercation with another student at NFA. He was removed from the 10
school, arrested by the Newburgh Police Department,3 and promptly 11
suspended for five days pending a disciplinary hearing. 12
Upon prior notice, the disciplinary hearing was held on 13
April 28, 2004 before a designated hearing officer, Edmund V. 14
Caplicki, Jr. Caplicki found that (a) Coleman had engaged in a 15
physical altercation with another student on school grounds; (b) 16
a crowd grew as a result of that altercation; (c) a series of 17
subsequent altercations broke out in the school between other 18
students; and (d) intervention by the Newburgh Police Department 19
was required. Based upon Caplicki’s findings, Dr. Annette 20
Saturnelli, the acting superintendent of schools, extended 21

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5
Coleman’s suspension for five more days pending the Committee on 1
Special Education’s (“CSE”) hearing as to whether Coleman’s 2
conduct was a manifestation of his disability and the penalty 3
phase of the disciplinary hearing before Caplicki. 4
On May 3, 2004, the CSE held its “manifestation hearing” and 5
determined that Coleman’s conduct was not attributable to his 6
disability. From this determination, Coleman had a right to a 7
series of administrative reviews — first to a due process 8
hearing, see 20 U.S.C. § 1415(k)(3); 8 N.Y.C.R.R. § 201.11(a)(3), 9
before an impartial hearing officer (“IHO”) appointed by the 10
local board of education, see 8 N.Y.C.R.R. § 200.5(j), and then 11
to a second hearing before a state review officer (“SRO”) of the 12
New York Education Department, see 8 N.Y.C.R.R. § 200.5(k); see 13
also 20 U.S.C. § 1415(g). Moreover, Coleman enjoyed the right to 14
have the due process hearing conducted on an expedited basis. 20 15
U.S.C. § 1415(k)(4)(B) (“[T]he State or local educational agency 16
shall arrange for an expedited hearing, which shall occur within 17
20 school days of the date the hearing is requested and shall 18
result in a determination within 10 school days after the 19
hearing.”); 8 N.Y.C.R.R. § 201.11(c) (“An expedited due process 20
hearing shall be completed within 15 business days of receipt of 21
the request for a hearing,” except in the event the IHO grants a 22
specific extension of time at the request of a party, and a 23
decision shall be rendered “within five business days after the 24

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4 As noted, an appeal from the impartial hearing officer’s 1
decision to a state review officer may be taken. Except in the 2
event the state review officer grants a specific extension of 3
time at the request of a party, a final decision must be reached 4
“not later than 30 days after the receipt of a request for a 5
review.” 8 N.Y.C.R.R. § 200.5(k)(2). 6
7
6
last hearing date, but in no event later than 45 calendar days 1
after receipt of the request for a hearing, without exceptions or 2
extensions.”).4 But these administrative reviews, as it turns 3
out, were never pursued. 4
Caplicki then heard the penalty phase of the disciplinary 5
hearing and, on May 4, 2004, issued a written report and 6
recommendation (the “Report and Recommendation”) that Coleman be 7
(a) suspended for the balance of the 2003-2004 school year with 8
the opportunity to receive home tutoring and instruction; (b) 9
allowed to attend 2004 summer school and return to school for the 10
2004-2005 school year if additional credits were needed to earn 11
his high school diploma; and (c) placed on probationary status if 12
he attended the summer program or returned to school during the 13
2004-2005 school year. The same day, Dr. Saturnelli wrote a 14
letter to Coleman in which she adopted the Report and 15
Recommendation in full and ordered that Coleman be suspended from 16
school for the remainder of the 2003-2004 school year and receive 17

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5 The IAES services, which the Defendants claim they have 1
offered Coleman, include 5 hours of home teaching daily (2 hours 2
for English, 2 hours for Science, 1 hour for Economics) and 1 3
hour with a prescriptive learning resource special education 4
teacher. Coleman, 319 F. Supp. 2d at 449 n.5. 5
7
his IEP in an interim alternative education setting (“IAES”).5
1
Coleman sued Defendants in New York State Supreme Court on 2
April 30, 2004. His complaint sought a temporary restraining 3
order to allow him to return to classes at NFA and participate in 4
extracurricular activities. Defendants removed Coleman’s action 5
to federal court. On May 6, Coleman renewed his request for a 6
temporary restraining order and/or preliminary injunction, and 7
the district court heard argument. 8
Also on May 6, Coleman appealed Dr. Saturnelli’s guilt and 9
penalty decisions to the Board of Education. The Board upheld 10
the actions of Dr. Saturnelli and rejected Coleman’s appeal to 11
that body in its entirety. Coleman’s counsel reported this 12
development to the district court on May 11. 13
Defendants moved to dismiss Coleman’s complaint on the basis 14
that the district court lacked subject matter jurisdiction 15
because Coleman had failed to exhaust all available 16
administrative remedies including, for instance, appealing 17
further to an IHO and then to an SRO. The district court found 18
that it had jurisdiction over the litigation because exhaustion 19
would be futile under the circumstances — namely, that before 20
Coleman could fully exhaust, he would miss graduating with his 21

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8
class and, incidentally, participating in extracurricular 1
activities. The district court then granted Coleman’s motion for 2
a preliminary injunction and ordered that he “immediately be 3
reinstated at NFA and that he be allowed to attend classes and to 4
participate in extracurricular activities.” Coleman, 319 F. 5
Supp. 2d at 457. Defendants appealed to this court and sought an 6
emergency stay. On June 3, 2004, a panel of this court denied 7
the stay, finding that Defendants failed to demonstrate 8
irreparable harm. Within a few weeks of that decision, on June 9
24, Coleman graduated from NFA. It followed that Defendants, by 10
stipulation and agreement with Coleman, withdrew their appeal as 11
moot on July 7, 2004. 12
On July 12, days after Defendants’ decision to withdraw 13
their appeal, Coleman moved in the district court pursuant to 20 14
U.S.C. § 1415(i)(3)(B) for attorneys’ fees in the amount of 15
$54,218.03. Defendants opposed the application through a Fed. R. 16
Civ. P. 12(b)(1) and (6) cross-motion to dismiss the complaint. 17
The district court awarded Coleman $28,431.52 in attorneys’ fees. 18
This appeal followed. 19
DISCUSSION 20
Defendants argue that the district court erred in awarding 21
attorneys’ fees to Coleman because the complaint should have been 22
dismissed for lack of subject matter jurisdiction based on a 23
failure to exhaust administrative remedies. See, e.g., McGinty 24

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9
v. New York, 251 F.3d 84, 100 (2d Cir. 2001) (“It . . . follows 1
that where we lack subject matter jurisdiction, we also lack 2
jurisdiction to award attorney’s fees.”). 3
I. The Jurisdictional Label 4
Before turning to the merits, we pause to consider whether 5
this appeal should be characterized as one involving 6
jurisdictional limitations. 7
The IDEA’s so-called exhaustion requirement is grounded in 8
20 U.S.C. § 1415(i)(2)(A), which provides a cause of action to 9
those parties who are “aggrieved” by a “final” decision of either 10
an impartial due process hearing officer, if the state does not 11
have an appeals process, or the state educational agency, if it 12
does. We have routinely stated that the IDEA’s exhaustion 13
requirement is jurisdictional. See, e.g., Polera v. Bd. of Educ. 14
of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483 (2d Cir. 15
2002) (“A plaintiff’s failure to exhaust administrative remedies 16
under the IDEA deprives a court of subject matter 17
jurisdiction.”); Murphy v. Arlington Cent. Sch. Dist. Bd. of 18
Educ., 297 F.3d 195, 199 (2d Cir. 2002) (“The plaintiff’s failure 19
to exhaust administrative remedies ordinarily deprives this court 20
of subject matter jurisdiction over any IDEA claims.”). 21
Recently, however, the Supreme Court has admonished lower 22
courts to more carefully distinguish between jurisdictional rules 23
and mandatory claims-processing rules, see Eberhart v. United 24

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10
States, 546 U.S. 12, 16 (2005) (per curiam) (“‘Clarity would be 1
facilitated’ . . . ‘if courts and litigants used the label 2
“jurisdictional” not for claim-processing rules, but only for 3
prescriptions delineating the classes of cases (subject-matter 4
jurisdiction) and the persons (personal jurisdiction) falling 5
within a court’s adjudicatory authority.’”) (quoting Kontrick v. 6
Ryan, 540 U.S. 443, 455 (2004)), the latter being subject to 7
waiver and forfeiture, see id. at 19 (“These claim-processing 8
rules thus assure relief to a party properly raising them, but do 9
not compel the same result if the party forfeits them.”). After 10
Kontrick and Eberhart, we have been equivocal in our discussion 11
of the IDEA’s exhaustion requirement, acknowledging our statement 12
in Polera that the failure to “exhaust IDEA administrative 13
remedies deprive[s][a] court of subject matter jurisdiction” but 14
also referring to the IDEA’s exhaustion requirements as the 15
defendants’ “non-exhaustion defense,” in a case where we 16
contemplated, but did not decide, whether those requirements are 17
subject to waiver. Handberry v. Thompson, 436 F.3d 52, 60 (2d 18
Cir. 2006) (citing Polera, 288 F.3d at 488-90); see also Paese v. 19
Hartford Life Accident Ins. Co., 449 F.3d 435, 444 n.2 (2d Cir. 20
2006) (stating that we have yet to reach a clear conclusion on 21
whether the failure to exhaust administrative remedies under the 22
IDEA is an affirmative defense, not a jurisdictional bar) (citing 23

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6 We note that the Seventh Circuit has recently reaffirmed its 1
conclusion that the IDEA’s exhaustion requirement is only an 2
affirmative defense, not a jurisdictional bar, because “‘lack of 3
exhaustion usually is waivable.’” Mosely v. Bd. of Educ., 434 4
F.3d 527, 532-33 (7th Cir. 2006) (quoting Charlie F. v. Bd. of 5
Educ. of Skokie Sch. Dist. 68, 98 F.3d 989, 991 (7th Cir. 1996)). 6
7 The Supreme Court recently answered affirmatively the 1
related question of whether the time limit in Rule 4(a)(6) — 2
which in civil cases allows district courts to reopen Rule 3
4(a)(1)(A)’s 30-day filing period by 14 days — is jurisdictional. 4
Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007). 5
11
Handberry, 436 F.3d at 60).6
1
But we are not forced to decided whether our precedent, 2
which labels the IDEA’s exhaustion requirement as a rule 3
affecting subject matter jurisdiction rather than an “inflexible 4
claim-processing” rule that may be waived or forfeited, remains 5
good law after Kontrick and Eberhart because there can be no 6
claim of waiver or forfeiture here. Defendants have consistently 7
challenged the district court’s exhaustion ruling throughout this 8
litigation. We took a similar position in United States v. 9
Moreno-Rivera, 472 F.3d 49, 50 n.2 (2d Cir. 2006) (per curiam), 10
where we noted that Kontrick and Eberhart cast doubt on our 11
precedent that considers the time limits of Fed. R. App. P. 4(b) 12
as jurisdictional, but declined to revisit the question because 13
the government had properly raised the untimely nature of 14
defendant’s notice of appeal in its motion to dismiss.7 In Zhong 15
v. United States Dep’t of Justice, 480 F.3d 104, 107 (2d Cir. 16
2007), however, we observed that Eberhart provided reason “for us 17
to treat as not jurisdictional, though mandatory (and hence 18

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8 That Defendants were not able to attack the district court’s 1
exhaustion determination on direct appeal does not amount to 2
waiver or forfeiture. Defendants stipulated to a dismissal of 3
their appeal because Coleman graduated from NFA. Contrary to 4
Coleman’s suggestion, they could not have maintained their appeal 5
on the basis that an award of attorneys’ fees might possibly be 6
forthcoming. We surely would have dismissed such an appeal as 7
moot rather than issue an advisory opinion. See, e.g., ABC, Inc. 8
v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004) (“[U]nder the mootness 9
doctrine, if an event occurs while a case is pending on appeal 10
that makes it impossible for the court to grant any effectual 11
relief whatever to a prevailing party, we must dismiss the case, 12
rather than issue an advisory opinion.”) (internal quotation 13
marks omitted). Thus, there was no relief available to 14
Defendants when they voluntarily withdrew their appeal because at 15
that time Coleman had not moved for attorneys’ fees and it was 16
not certain that he would do so. 17
12
waivable) the requirement of issue exhaustion” provided in 8 1
U.S.C. § 1252(d) and decided to so hold because the question was 2
“determinative of the asylum case before us.”8
3
That Defendants are challenging the district court’s 4
exhaustion determination by way of an appeal from an award of 5
attorneys’ fees does not impede our review of the issue. The 6
IDEA’s fee-shifting provision “limits judicial discretion to 7
award attorney’s fees to ‘any action or proceeding brought under 8
this subsection.’” W.G. v. Senatore, 18 F.3d 60, 64-65 (2d Cir. 9
1994) (quoting 20 U.S.C. § 1415(e)(4)(B), the predecessor to § 10
1415(i)(3)(B)). The phrase “brought under this subsection” 11
encompasses the administrative procedures and civil actions 12
provided in 20 U.S.C. § 1415(i) and requires an independent 13
examination of whether the underlying action was properly 14
brought, which in turn requires an assessment of whether the 15

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13
district court’s exhaustion determination was proper. We now 1
turn to that question. 2
II. Exhaustion 3
“It is well settled that the IDEA requires an aggrieved 4
party to exhaust all administrative remedies before bringing a 5
civil action in federal or state court . . . .” J.S. v. Attica 6
Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004). However, the 7
exhaustion requirement does not apply “in situations in which 8
exhaustion would be futile.” Polera, 288 F.3d at 488 (internal 9
quotation omitted). To show futility, a plaintiff must 10
demonstrate that “adequate remedies are not reasonably available” 11
or that “the wrongs alleged could not or would not have been 12
corrected by resort to the administrative hearing process.” J.G. 13
v. Bd. of Educ. of Rochester City Sch. Dist., 830 F.2d 444, 447 14
(2d Cir. 1987); Heldman v. Sobol, 962 F.2d 148, 158 (2d Cir. 15
1992). For relief to be adequate, it must “give realistic 16
protection to the claimed right.” Murphy, 297 F.3d at 199 17
(internal quotation marks omitted). The burden of demonstrating 18
futility rests with the party seeking to avoid the exhaustion 19
requirement. Polera, 288 F.3d at 489 n.8. 20
The district court found that Coleman had established that 21
exhaustion would be futile. The district court reasoned that 22
Coleman would not have been able to exhaust the full 23
administrative processes available — review of the CSE’s adverse 24

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14
manifestation determination by an IHO and an SRO — before the 1
school year ended. As a result, Coleman would have missed his 2
graduation and been unable to participate in extracurricular 3
activities, including track and field events. The district court 4
believed that these circumstances meant that there were no 5
adequate administrative remedies available. 6
We do not agree that the administrative processes available 7
to Coleman left him without an adequate remedy. The district 8
court erred by focusing on the detriment Coleman would have 9
suffered on account of being removed from NFA and placed in an 10
IAES until he graduated. The sole question was whether he had a 11
right, under the IDEA, to be reinstated at NFA while the 12
allegedly erroneous manifestation determination was reviewed. He 13
did not. 14
To be sure, 20 U.S.C. § 1415(k)(1)(F)(iii) establishes a 15
disabled child’s right to be returned to the school from which he 16
or she was removed if the behavior that gave rise to the child’s 17
violation of the school’s code of conduct is determined to be a 18
manifestation of the child’s disability. And the procedural 19
safeguards provided in the IDEA entitle “[t]he parent of a child 20
who disagrees with . . . the manifestation determination . . . 21
[to] a hearing,” § 1415(k)(3)(A); see 8 N.Y.C.R.R. § 22
201.11(a)(3), conducted on an “expedited” basis, § 1415(k)(4)(B); 23
8 N.Y.C.R.R. § 201.11(c). However, an aggrieved child does not 24

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15
have the right to return to the school from which he or she has 1
been removed while the administrative and judicial review process 2
is underway. Cf. Murphy, 297 F.3d at 199 (Section 1415(j) — the 3
“stay-put” provision — establishes a student’s right to a stable 4
learning environment during administrative and judicial review 5
and, thus, if that right is threatened, “an immediate appeal is 6
necessary to give realistic protection to [it]”) (internal 7
quotation marks omitted). Congress specifically spoke to this 8
issue in § 1415(k)(4)(A), stating: “When an appeal [of a 9
manifestation determination] has been requested . . . the child 10
shall remain in the interim alternative educational setting 11
pending the decision of the hearing officer . . . .” (Emphasis 12
added). Congress could have chosen, but did not, to permit the 13
child to remain in his original school. In sum, while Coleman 14
had a right not to be removed from NFA based on an erroneous 15
determination of no manifestation, he had no right to 16
reinstatement while that determination was being reviewed. 17
As a broader matter, we are not persuaded that a disabled 18
child has a right, under the IDEA, to graduate on a date certain 19
or from a particular educational institution — specifically, the 20
child’s original school rather than an IAES. The IDEA’s mandate 21
is that all disabled children be given a “free appropriate public 22
education.” 20 U.S.C. § 1412(a)(1)(A); see Bd. of Educ. v. 23
Rowley, 458 U.S. 176, 181 (1982) (interpreting the predecessor 24

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16
statute to the IDEA). In fulfilling this mandate, there are no 1
general time and manner requirements placed on the states other 2
than those provided in the IDEA and created by the states. The 3
State of New York has administrative processes consistent with 4
these requirements. See Coleman, 319 F. Supp. 2d at 450-51 5
(describing administrative processes available to Coleman); see 6
also Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 123 7
(2d Cir. 1998) (describing the system New York has developed to 8
meet its obligations under the IDEA and to implement its own 9
policies regarding the education of disabled children). That the 10
carrying out of these administrative processes may take some 11
time, and in certain circumstances result in the child graduating 12
in an IAES after his anticipated graduation date, does not equate 13
to an inadequate remedy. Cf. Polera, 288 F.3d at 488 (“[R]elief 14
available . . . mean[s] relief for the events, condition, or 15
consequences of which the person complains, [even if] not 16
necessarily relief of the kind the person prefers.”) (internal 17
quotation marks omitted). 18
Coleman argues that because he was set to graduate in a few 19
weeks, his case presented an “emergency situation” such that 20
exhaustion would be futile. Coleman’s reference to the term 21
“emergency situation” finds its origins in the IDEA’s legislative 22
history. The House Report to the IDEA’s predecessor defined the 23
parameters of the futility exception to include complaints that 24

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17
“an emergency situation exists (e.g., the failure to take 1
immediate action will adversely affect a child’s mental or 2
physical health).” H.R. Rep. No. 296, 99th Cong., 1st Sess. 7 3
(1985) (emphasis added). 4
Coleman’s “emergency situation” argument is unpersuasive 5
here. In the first place, it fails to address that the relief 6
Coleman sought — graduating with his class — is not necessary to 7
prevent the deprivation of a right protected under the IDEA. In 8
any event, there was no showing that the delay that would have 9
occurred in exhausting the administrative processes, which may 10
have entailed his missing graduation on June 24 and participation 11
in certain school activities, would have affected Coleman’s 12
mental or physical health; he does not even suggest as much. 13
Acceptance of Coleman’s argument could lead district courts, 14
following the suspension of a disabled student after an adverse 15
manifestation determination, to bypass the IDEA’s exhaustion 16
requirement altogether because any administrative remedy, while 17
the student was attending the IAES, would be insufficient to 18
correct the “harm” inflicted by missing out on such things as 19
normal classroom time and extracurricular activities at the 20
disabled student’s regular school. Such a sweeping exception 21
would undermine the IDEA’s statutory mandate for exhaustion. See 22
Polera, 288 F.3d at 488. This is why other circuits have stated 23
that the emergency situation exception “‘is to be sparingly 24

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18
invoked.’” Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000) 1
(quoting Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 2
775, 779 (3d Cir. 1994)); see also Komninos, 13 F.3d at 779 3
(“[M]ere allegations by plaintiffs of irreversible harm will not 4
be enough to excuse the completion of administrative proceedings. 5
Plaintiffs must provide a sufficient preliminary showing that the 6
child will suffer serious and irreversible mental or physical 7
damage (e.g., irremediable intellectual regression) before the 8
administrative process may be circumvented.”). That Coleman was 9
a superior athlete who was on the verge of graduating does not 10
make his claim of an emergency situation more compelling. 11
Accordingly, we conclude that, because the district court 12
should have dismissed Coleman’s complaint for failure to exhaust 13
his administrative remedies and erred in not doing so, it was 14
also error for the district court to award Coleman attorneys’ 15
fees. 16
CONCLUSION 17
For the foregoing reasons, we reverse the district court’s 18
award of attorneys’ fees. 19
20

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19
STRAUB, Circuit Judge, concurring: 1
I agree fully with the Court’s opinion. I write separately to emphasize that I do not 2
believe either Kontrick v. Ryan, 540 U.S. 443 (2004), or Eberhart v. United States, 546 U.S. 12 3
(2005) (per curiam), raises any doubt as to our well-established precedent that federal courts lack 4
subject matter jurisdiction over IDEA claims that are unexhausted and that do not meet one of 5
the limited exceptions to the statute’s exhaustion requirement. 6
As the Court notes, supra at 9, we have long treated the IDEA’s exhaustion requirement 7
as jurisdictional. See, e.g., Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 8
F.3d 478, 483 (2d Cir. 2002); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297 F.3d 195, 9
199 (2d Cir. 2002); Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 789 (2d Cir. 2002); W.G. v. 10
Senatore, 18 F.3d 60, 64-65 (2d Cir. 1994). The vast majority of other circuits to have 11
considered the issue have done so as well. See, e.g., Ellenberg v. New Mexico Military Inst., 478 12
F.3d 1262, 1279 (10th Cir. 2007); Fliess v. Washoe County Sch. Dist., 90 Fed. Appx. 240, 242 13
(9th Cir. 2004) (unpublished decision); Babicz v. Sch. Bd. of Broward County, 135 F.3d 1420, 14
1421 (11th Cir. 1998) (per curiam); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 15
1095 (1st Cir. 1989); but see Mosely v. Bd. of Educ. of City of Chicago, 434 F.3d 527 (7th Cir. 16
2006). This is for good reason: as explained more fully below, the IDEA, with few exceptions, 17
does not provide prospective plaintiffs with a federal cause of action until the state review 18
process has been completed. See 20 U.S.C. §§ 1415(i)(1) & (i)(2). 19
Neither Kontrick nor Eberhart calls this considerable body of case law into question. In 20
Kontrick, the Supreme Court held that in bankruptcy proceedings, the 60-day time limit pursuant 21
to Bankruptcy Rule 4004(a) for a creditor to file a complaint objecting to the debtor’s discharge 22

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20
is not jurisdictional, but rather is a judicially-created “claim-processing rule” that is subject to 1
waiver and forfeiture. See 540 U.S. at 454-56. The Court reasoned that under the bankruptcy 2
laws, Congress provided that “objections to discharges” are “[c]ore proceedings” that are clearly 3
within the jurisdiction of the federal courts, and that no statute curtails that jurisdiction by 4
specifying a time limit for filing a complaint objecting to discharge. Id. at 453-54 (quoting 28 5
U.S.C. § 157(b)(2)(J)). Thus, Rule 4004(a)’s 60-day time limit does not affect “the classes of 6
cases . . . falling within a court’s adjudicatory authority,” i.e., subject matter jurisdiction. Id. at 7
455. 8
In Eberhart, the Supreme Court followed Kontrick in holding that the seven-day time 9
limit for a defendant to file a motion for a new trial pursuant to Federal Rule of Criminal 10
Procedure 33 was not jurisdictional. See 546 U.S. at 13. The Court explained that Rule 33, like 11
Bankruptcy Rule 4004(a), is nothing more than an “‘emphatic time prescription[] in [a] rule[] of 12
court’” that regulates motion practice in an action – a federal criminal prosecution – that district 13
courts already possess subject matter jurisdiction to adjudicate. Id. at 18 (quoting Kontrick, 540 14
U.S. at 454). In reaching its conclusion, the Court stressed that “‘[c]larity would be facilitated’ . . 15
. ‘if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for 16
prescriptions delineating the classes of cases (subject matter jurisdiction) and the persons 17
(personal jurisdiction) falling within a court’s adjudicatory authority.’” Id. at 16 (quoting 18
Kontrick, 540 U.S. at 455). 19
Kontrick and Eberhart thus counsel that where Congress has provided courts with 20
jurisdiction over the claim at issue, judicial rules cannot be relied upon to abdicate that 21
jurisdiction. See Kontrick, 540 U.S. at 452-53 (“Only Congress may determine a lower federal 22

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21
court’s subject-matter jurisdiction. . . . ‘[I]t is axiomatic’ that [judicially-created] rules ‘do not 1
create or withdraw federal jurisdiction.’” (quoting Owen Equip. & Erection Co. v. Kroger, 437 2
U.S. 365, 370 (1978)). In both cases, Congress had clearly provided jurisdiction over the 3
underlying actions – an objection to discharge and a federal criminal prosecution – and the time 4
limitations that affected the processing of those actions were not dictated by statute in a way that 5
could affect the existence of the underlying claims, but rather were a product of judicial 6
rulemaking. This, then, is the critical distinction between a claim-processing rule and a 7
jurisdictional bar: a claim-processing rule does not affect the existence of the underlying claim. 8
See also Paese v. Hartford Life & Accident Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (noting 9
that an exhaustion requirement is not jurisdictional “unless the failure to exhaust administrative 10
remedies is essential to the existence of the claim, or to ripeness, and therefore to the presence of 11
an Article III case or controversy”) (internal citations and quotation marks omitted). 12
We have applied this principle in the exhaustion context in several recent cases. In 13
Richardson v. Goord, 347 F.3d 431 (2d Cir. 2003) (per curiam), we held that the exhaustion 14
requirement in the Prison Litigation Reform Act (“PLRA”) is a claim-processing rule because the 15
requirement affects a prisoner’s preexisting claims – brought under different statutes such as 42 16
U.S.C. § 1983 – and thus exhaustion is not “essential to the existence of the claim.” Id. at 434. 17
Similarly, in Paese v. Hartford Life & Accident Insurance Co., we found that the failure to 18
exhaust administrative remedies under the Employee Retirement Income Security Act (“ERISA”) 19
does not deprive courts of subject matter jurisdiction (despite language in prior cases in this 20
Circuit suggesting otherwise) because, inter alia, ERISA “contains no statutory exhaustion 21
requirement”; rather, the requirement “is purely a judge-made concept” that “ha[s] little or no 22

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22
bearing on the existence of a claim.” 449 F.3d at 443, 445. In Zhong v. United States 1
Department of Justice, 480 F.3d 104, 107 (2d Cir. 2006), we noted that the converse was true for 2
exhaustion of administrative remedies in the immigration context. We explained that the 3
immigration laws specify that courts of appeal may review only a “final order of removal,” 8 4
U.S.C. § 1252(d), which is a “clearly jurisdictional requirement” requiring that asylum cases be 5
“brought to the Executive Office for Immigration Review (i.e., an IJ and the BIA) before they can 6
be considered by courts of appeal.” Zhong, 480 F.3d at 107. We went on to hold that exhaustion 7
of issues in the immigration context is not a jurisdictional requirement because issue exhaustion, 8
unlike exhaustion of remedies, is merely a “court-imposed” rule not expressly mandated by the 9
immigration laws. Id. at 115-18. 10
Applied here, these principles leave no doubt that the IDEA’s exhaustion requirement is 11
jurisdictional because it directly affects the existence of a plaintiff’s underlying claim. The IDEA 12
creates a series of procedural protections for disabled children as a means to ensure their “access 13
to a free appropriate public education.” 20 U.S.C. § 1400(c)(3); see generally Heldman v. Sobel, 14
962 F.2d 148, 150-52 (2d Cir. 1992). For disabled students such as Coleman who are removed 15
from school for disciplinary reasons, these protections include, inter alia, a right to a 16
manifestation hearing to determine whether the student’s conduct was caused by or directly 17
related to his disability, 20 U.S.C. § 1415(k)(1)(E); a right to an expedited appeal of the 18
manifestation decision before an impartial hearing officer, 20 U.S.C. §§ 1415(k)(3), (k)(4)(B) & 19
(f)(1)(A); and a right to appeal that decision before a state review officer, 20 U.S.C. § 1415(g). 20
But the IDEA does not permit students or their parents to sue the moment they are dissatisfied 21
with the outcome of any of these proceedings. Rather, the IDEA grants prospective plaintiffs a 22

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1 The above analysis applies to exhaustion of remedies where a plaintiff’s claim is brought 1
directly under the IDEA. The IDEA contains a separate provision requiring plaintiffs who bring 2
actions under other statutes – such as the Americans with Disabilities Act – but who are seeking 3
the kinds of relief available under the IDEA, to also exhaust administrative remedies before 4
bringing suit: 5
Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and 6
remedies available under the Constitution, the Americans with Disabilities Act of 1990 7
[42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 8
791 et seq.], or other Federal laws protecting the rights of children with disabilities, 9
except that before the filing of a civil action under such laws seeking relief that is also 10
available under this subchapter, the procedures under subsections (f) and (g) of this 11
section shall be exhausted to the same extent as would be required had the action been 12
brought under this subchapter. 13
20 U.S.C. § 1415(l). This provision is much more akin to the exhaustion requirement of the 14
PLRA, in that it requires exhaustion before bringing causes of action that exist independently; 15
thus, exhaustion under this provision may indeed be a claim-processing rule and not 16
jurisdictional. Cf. Richardson, 347 F.3d at 434 (noting that the PLRA “lacks the sweeping and 17
direct language that would indicate a jurisdictional bar rather than a mere codification of 18
administrative exhaustion requirements”) (internal citation and quotation marks omitted); but see 19
Hope v. Cortines, 69 F.3d 687, 688 (2d Cir. 1995) (holding that section 1415(l) of the IDEA is 20
jurisdictional). This issue does not arise here because Coleman’s only federal claims are 21
23
federal (or state) cause of action only at the end of the administrative process: to parties who are 1
“aggrieved” by the “final” decision of a state educational agency, or, if the agency does not 2
provide an internal avenue of appeal, by the final decision of the impartial hearing officer. See 3
20 U.S.C. §§ 1415(i)(1) & (i)(2). Thus, by the explicit terms of the statute, a party like Coleman 4
has the right to sue only after the state process has reached a final decision, just as an asylum 5
seeker must first appeal an immigration judge’s adverse decision to the Board of Immigration 6
Appeals before seeking relief in federal court. Courts, of course, do not possess jurisdiction over 7
claims that Congress has specified do not yet exist. See, e.g., Bowles v. Russell, 127 S. Ct. 2360, 8
2365 (2007) (“Within constitutional bounds, Congress decides what cases the federal courts have 9
jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it 10
can also determine when, and under what conditions, federal courts can hear them.”).1
11

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brought exclusively under the IDEA. 1
2
24
The Seventh Circuit – the only Court of Appeals to hold that the IDEA’s exhaustion 1
requirement is not jurisdictional – reasoned that “lack of exhaustion usually is waivable, as lack 2
of jurisdiction is not.” Mosely, 434 F.3d at 533 (internal citation and quotation marks omitted). 3
For that proposition, the Seventh Circuit cites Charlie F. v. Bd. of Educ. of Skokie Sch. Dist. 68, 4
98 F.3d 989, 991 (7th Cir. 1996), which in turn cites Weinberger v. Salfi, 422 U.S. 749, 766-67 5
(1975). Weinberger, however, supports the conclusion that the IDEA’s exhaustion requirement 6
is jurisdictional. In that case, the Supreme Court held that because the Social Security Act 7
(“SSA”) grants individuals a right to a “civil action” only upon the “final decision of the 8
Commissioner of Social Security made after a hearing to which he was a party,” 42 U.S.C. § 9
405(g), the requirement that a “final decision” be reached “is a statutorily specified jurisdictional 10
prerequisite.” Weinberger, 422 U.S. at 766. Accordingly, the Court found that the district court 11
lacked jurisdiction over the claims of the unnamed class members in the case, who had not filed 12
applications with the Secretary and thus were not appealing from “any decision [of the 13
Secretary], final or otherwise.” Id. at 764. The named plaintiffs, however, had “fully presented 14
their claims for benefits to their district Social Security Office and, upon denial, to the Regional 15
Office for reconsideration,” and were raising purely constitutional claims that could benefit from 16
no further exhaustion. Id. at 764-65. The Supreme Court found that jurisdiction existed over 17
these claims – even though the plaintiffs had not pursued all internal avenues of appeal – because 18
(1) the term “final decision” in the SSA “is not only left undefined by the Act, but its meaning is 19
left to the Secretary [of Health, Education, and Welfare] to flesh out by regulation”; and (2) the 20
Secretary did not object to the named plaintiffs’ failure to fully exhaust all administrative 21

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25
avenues and in so doing determined “that for the purposes of this litigation the reconsideration 1
determination is ‘final.’” Id. at 766-67. Weinberger thus does not support the contention that 2
exhaustion requirements are generally waivable; rather, because of the SSA’s “particular 3
administrative scheme,” id. at 765, complete exhaustion of social security claims is not required 4
so long as a “final decision” by the Secretary has been reached. Id. at 767. 5
In Mathews v. Eldridge, 424 U.S. 319, 328-30 (1976), the Supreme Court expanded on 6
Weinberger and clarified that “the [SSA’s] requirement that a claim for benefits shall have been 7
presented to the Secretary . . . is an essential and distinct precondition for . . . jurisdiction,” 8
whereas the “requirement that the administrative remedies prescribed by the Secretary be 9
exhausted” is waivable, either by the Secretary, or in certain limited circumstances, by the courts. 10
See also City of New York v. Heckler, 742 F.2d 729, 734 (2d Cir. 1984) (noting that the SSA’s 11
“final decision” requirement “consist[s] of two elements – (i) the ‘jurisdictional,’ non-waivable 12
requirement that a claim for benefits has been presented to the Secretary and (ii) the ‘waivable’ 13
requirement that the administrative remedies prescribed by the Secretary have been exhausted.”). 14
This distinction in SSA cases between “presentment” and “exhaustion” is inapplicable, 15
and indeed would be incoherent, in the IDEA context. Unlike the SSA, which does not define 16
the requisite “final decision” for jurisdictional purposes, see Weinberger, 422 U.S. at 766, the 17
IDEA explicitly delineates what is required before a plaintiff may bring a federal or state action: 18
he or she must be “aggrieved by the findings and decision” of the “State educational agency,” or, 19
if the state does not provide for an appeal to that agency, a plaintiff can file suit to challenge the 20
decision reached at the “[i]mpartial due process hearing.” 20 U.S.C. §§ 1415(i), (f), (g) & (k). 21
These provisions are unambiguous and do not leave open the possibility that the “final decision” 22

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26
for jurisdictional purposes can mean anything other than that of the state educational agency or 1
the impartial due process hearing officer. Moreover, the administrative process in social security 2
cases occurs under a single umbrella, so it can fairly be said that an initial challenge to the 3
termination of benefits has been “presented” to the Secretary, and a decision to uphold a 4
termination of benefits can fairly be construed as a “final decision” for jurisdictional purposes. 5
Under the IDEA, on the other hand, the state is ultimately responsible for adhering to the 6
statute’s myriad requirements (in order to receive federal funding), but the first stages in the 7
hearing process occur at the local level. Thus, presenting a claim, for example, to the 8
superintendent of schools, or to the local official who conducts the manifestation hearing, is not 9
the equivalent of presenting a claim to the state itself. As a result, permitting waiver of the 10
IDEA’s exhaustion requirement would defeat one of its fundamental purposes: to give states the 11
opportunity to correct the errors of their localities. See Polera v. Bd. of Educ. of Newburgh 12
Enlarged City Sch. Dist., 288 F.3d 478, 487 (2d Cir. 2002). 13
The IDEA’s exhaustion requirement is unique in one respect: it allows for some limited 14
exceptions, whereas most jurisdictional rules do not. See Bowles, 127 S. Ct. at 2366 (noting that 15
courts “lack[] authority to create equitable exceptions to jurisdictional requirements”). 16
Exhaustion of IDEA claims is not required “if (1) it would be futile to resort to the IDEA’s due 17
process procedures; (2) an agency has adopted a policy or pursued a practice of general 18
applicability that is contrary to the law; or (3) it is improbable that adequate relief can be 19
obtained by pursuing administrative remedies.” Murphy v. Arlington Cent. Sch. Dist. Bd. of 20
Educ., 297 F.3d 195, 199 (2d Cir. 2002) (citing Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 21
1987)). Such exceptions are typically recognized only when exhaustion is a judicially-created 22

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claim-processing rule. See Zhong, 461 F.3d at 119 (“In contrast to statutory exhaustion, . . . 1
judicial exhaustion permits courts, in their discretion, to waive administrative exhaustion under 2
certain circumstances.”) (internal citation and quotation marks omitted). However, the 3
exceptions to the IDEA’s exhaustion requirement derive not from judicial doctrine, but from the 4
statute’s unambiguous legislative history. See Heldman, 962 F.2d at 158-59 & n.11 (explaining 5
that the three recognized exceptions to exhaustion of IDEA claims – futility, a challenge to a 6
policy of general applicability, and inadequacy of relief – derive directly from the legislative 7
history of the Education for All Handicapped Children Act of 1975 and the Handicapped 8
Children’s Protection Act of 1986, the precursors to the IDEA). Thus, these are not judicially- 9
created exceptions that ordinarily would signify a claim-processing rule; rather, they are, 10
effectively, statutory exceptions that courts must follow to carry out the clear intent of Congress. 11
Accordingly, district courts possess jurisdiction over unexhausted claims only when one or more 12
of these exceptions applies. Any other conclusion would violate the principle that “[o]nly 13
Congress may determine a lower federal court’s subject matter jurisdiction.” Kontrick, 540 U.S. 14
at 453. 15
I therefore agree with the Court that Coleman is not entitled to attorneys’ fees because he 16
failed to exhaust his administrative remedies. Indeed, he filed his lawsuit even before his 17
manifestation hearing. I think it is also clear, however, that the District Court did not possess 18
subject matter jurisdiction over Coleman’s claims and thus should have dismissed his lawsuit at 19
the outset. 20

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