NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 17-3802 ______________

M.M., individually and on behalf of K.M., Appellant v. PATERSON BOARD OF EDUCATION ______________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. No. 2:17-cv-11948) District Judge: Hon. John M. Vazquez ______________

Submitted under Third Circuit L.A.R. 34.1(a) May 24, 2018 ______________

Before: MCKEE, SHWARTZ, and NYGAARD, Circuit Judges

(Filed: June 4, 2018)

______________

OPINION* ______________ SHWARTZ, Circuit Judge

M.M., individually and on behalf of her child K.M., appeals an order denying

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. preliminary injunctive relief because she failed to exhaust her administrative remedies as required under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Because M.M. has not demonstrated that an exception to the exhaustion requirement applies, we will affirm.

I

For at least part of the 2016 to 2017 school year, K.M. was in eighth grade at the New Roberto Clemente School in the Paterson Public School District (“Paterson”),1 and he had previously received an Individualized Education Plan (“IEP”). In January 2017, K.M. was diagnosed with depression and other disorders and was recommended for inpatient hospitalization, sixty days of in-home instruction, and a therapeutic placement. However, M.M. elected instead to try medication management. In April, K.M. was transferred to another school in the district but was ultimately absent for most of the 2016-2017 school year. In June 2017, Paterson notified M.M. that K.M. would be retained in the eighth grade and not promoted to high school.

In August 2017, M.M. filed in the New Jersey Office of Special Education Policy and Procedure a request for a due process hearing, asserting the denial of a Free Appropriate Public Education (“FAPE”), and for emergent relief, seeking K.M.’s promotion to high school.^[2] In October 2017, one administrative law judge (“ALJ”) denied the request for emergent relief, and a different ALJ scheduled the due process hearing for June 7 and 8, 2018.

After losing her request for emergent relief before the ALJ, M.M. filed a verified complaint and requested a preliminary injunction in the United States District Court for the District of New Jersey seeking K.M.’s promotion to high school and temporary home instruction. The complaint alleged that Paterson unlawfully denied K.M. a FAPE in violation of the IDEA and discriminated against him in violation of the Americans with Disabilities Act and New Jersey’s Law Against Discrimination. Paterson opposed M.M.’s request for a preliminary injunction and filed a cross-motion to dismiss the complaint. The District Court denied M.M.’s request for preliminary injunctive relief and dismissed her IDEA claim due to her failure to exhaust administrative remedies.

M.M. appeals the denial of the preliminary injunction and Paterson moves to strike M.M.’s appeal brief and appendix because they refer to materials not presented to the District Court.

II3 “When reviewing a district court’s denial of a preliminary injunction, we review the court’s findings of fact for clear error, its conclusions of law de novo, and the ultimate decision for an abuse of discretion.” Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017) (alterations and citation omitted). Whether an exception to the exhaustion requirement applies is a legal question subject to plenary review. Lester H. by Octavia P. v. Gilhool, 916 F.2d 865, 869 (3d Cir. 1990).

A

The IDEA requires participating states to provide disabled children with a FAPE, 20 U.S.C. § 1412(a)(1)(A), which a school district administers through its development of an instructional program set forth in an IEP for the disabled child, id. at § 1414(d). Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 128 n.4, 131 (3d Cir. 2017). The IDEA establishes an administrative scheme that parties must follow to resolve claims that a school denied a student of a FAPE. Id. at 131. The scheme provides for an impartial due process hearing conducted by the state or local educational agency. See 20 U.S.C. § 1415(f). Generally, “a plaintiff who seeks relief available under the IDEA must exhaust his administrative remedies before filing a lawsuit . . . .” Wellman, 877 F.3d at 131; see also 20 U.S.C. § 1415(i)(2)(A) (providing a cause of action to those “aggrieved” by a “final” decision of the due process hearing officer or state educational agency). There are four exceptions to the exhaustion requirement: “(1) exhaustion would be futile or inadequate; (2) the issue presented is purely a legal question; (3) the administrative agency cannot grant relief; and (4) exhaustion would cause severe or irreparable harm.” D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014). The party seeking to be excused from exhaustion bears the burden of establishing an exception. See Honig v. Doe, 484 U.S. 305, 327 (1988). M.M. asserts that the first, second, and fourth exceptions apply here. However, based the record before the District Court and in light of current circumstances, we disagree.^[4]

First, M.M. has not shown that exhaustion would be futile. The ALJ has the capacity to hear the relevant facts concerning K.M.’s individual placement. This is not a situation involving claims by thousands of disabled children that would overwhelm the state administrative agency and foreclose timely relief, as was the case in Jose P. v. Ambach, 669 F.2d 865, 869 (2d Cir. 1982), or allegations of systemic deficits, see Beth V. by Yvonne V. v. Carroll, 87 F.3d 80, 89 (3d Cir. 1996) (acknowledging an exhaustion exception where plaintiffs “allege systemic legal deficiencies and, correspondingly, request system-wide relief that cannot be provided . . . through the administrative process”). Second, M.M. has not demonstrated that the administrative process is unable to provide an appropriate remedy for the harms alleged. See Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 281 (3d Cir. 2014) (concluding that a case “does not present any of the circumstances warranting the application of the futility exception” because, among other reasons, “the IDEA administrative process is in fact able to provide a suitable remedy for the harms alleged”). Indeed, the ALJ has the authority to order K.M.’s placement as dictated by the facts and governing law. Therefore, exhaustion is not futile or inadequate.

Third, the factual record is not fully developed, and questions about the appropriate placement and IEP for K.M. are disputed. Paterson believes K.M. should be retained in the eighth grade while M.M. seeks to have K.M. promoted to high school. Compare id. at 281 (refusing to excuse exhaustion where the factual record was not fully developed and the plaintiffs had not participated in hearings before an ALJ to resolve the student’s classification and placement), with Lester H., 916 F.2d at 869-70 (excusing exhaustion where “no evidentiary disputes remain[ed]”). The decision concerning which placement is appropriate will be dictated by the facts. Given these factual disputes, M.M. has not shown that exhaustion should be excused on the basis of a purely legal question.5

Turning to the final alleged exception upon which M.M. relies, irreparable harm, exhaustion may be excused where the plaintiff “provide[s] a sufficient preliminary showing that the child will suffer serious and irreversible mental or physical damage (e.g., irremediable intellectual regression) . . . .” Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 779 (3d Cir. 1994). “[T]o meet that threshold, plaintiffs must provide affidavits from competent professionals along with other hard evidence that the

5 M.M. argues that only Paterson’s procedural violation of the IDEA and its denial of a FAPE are before our Court. However, M.M. has not described her alleged procedural violations to us and instead improperly attempted to incorporate by reference her brief in the District Court raising such claims. See Norman v. Elkin, 860 F.3d 111, 130 n.26 (3d Cir. 2017) (rejecting a litigant’s attempt to incorporate by reference District Court briefing). Moreover, M.M.’s claim that she is raising only procedural violations is belied by her present request for relief—promotion to high school—and she concedes that questions concerning K.M.’s placement may require a due process hearing.

child faces irreversible damage if the relief is not granted.” Id. Evidence of a student’s “regression” is unlikely to establish irreparable harm because “in general, the skills lost in regression may be recouped,” and a “delay in obtaining [an] expected benefit may be redressed by compensable extensions of eligibility for educational aid.” Id. at 780.

M.M. presented no evidence to the District Court indicating that K.M. would suffer irreversible damage in the absence of home instruction and promotion to high school during the pendency of administrative proceedings. Without evidence concerning irreversible harm to K.M. and given that he is currently receiving home instruction and the administrative due process hearing is scheduled to occur shortly, M.M. has not established that denying preliminary injunctive relief would cause K.M. irreparable harm.^[6] See Rose v. Yeaw, 214 F.3d 206, 212 (1st Cir. 2000) (irreparable harm exception not established where the plaintiffs failed to provide evidence that their disabled son would have “experienced severe harm” or “irreversible damage” to his health or education while exhausting administrative remedies).

For these reasons, the District Court did not abuse its discretion in concluding that M.M. failed to exhaust her administrative remedies and that no exception applied.

B After the District Court denied preliminary injunctive relief, K.M. was evaluated by Dr. Panter, who opined that K.M. should be promoted to ninth grade and receive home instruction until the proper therapeutic placement is identified for him.^[7] However, Dr. Panter’s evaluation was not presented to the District Court. Because we “review the decision below on the basis of the record that was before the district court,” and M.M. has not presented any “exceptional circumstances” to permit her to supplement the record, Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 226-27 (3d Cir. 2009)8; see also Webb v. City of Philadelphia, 562 F.3d 256, 261 n.4 (3d Cir. 2009) (“We do not consider material on appeal that is outside of the district court record.”); Fed. R. App. P. 10(e) (allowing corrections to the record due to omissions or misstatements resulting from “error or accident”), we will not consider the Panter materials. Having disregarded those materials and references thereto, we will deny Paterson’s motion to strike M.M.’s appeal brief and appendix as unnecessary.^[9]

III

For the foregoing reasons, we will affirm the District Court’s order denying M.M.’s preliminary injunction10 and deny Paterson’s motion to strike.