State Education Department [the "SED"], pursuant to the following statutes: (i) the Individuals with Disabilities Education Act ["IDEA"], 20 U.S.C. § 1400 et seq., (ii) section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, (iii) 42 U.S.C. § 1983, and (iv) section 4401 et seq. of the New York Education Law. The plaintiffs contend that the defendants violated their due process rights by failing to conduct impartial hearings concerning their placements in the New York City public schools. Specifically, the plaintiffs allege that the defendants violated their procedural rights in the following ways: (i) by failing to assign impartial hearing officers pursuant to a rotational system; (ii) by failing to maintain the original handwritten decisions issued by the impartial hearing officers retained by the Board; (iii) by permitting payment to be made to impartial hearing officers retained by the Board; and (iv) as a result of the Board's requirement that each impartial hearing officer be an attorney. The plaintiffs have fashioned their complaint as a putative class action which purports to assert claims on behalf of similarly situated persons.
Pending before the Court are two separate motions to dismiss the complaint that have been filed by the Board and the SED. The Board's motion is unopposed by the plaintiffs. In addition, the plaintiffs, among other things, have improperly served the SED, and fail to address the SED's contention that the statute of limitations has expired.
The plaintiffs are preschool-age autistic children, residing in the City of New York, who are in need of special education, to which they are entitled under IDEA, and the New York Education Law. See Compl. PP 5-8. The Board's Committee on Preschool Education ["CPSE"] recommended placements for these children with which their parents disagreed. See id. P 32.
The respective plaintiffs appealed the CPSE's recommendations of placement to the Board's Impartial Hearing Office. See id. P 35. In each instance, the attorney for the plaintiffs requested that a "truly impartial hearing officer be appointed to conduct the hearing and that the hearing officer be appointed pursuant to the New York Code of Rules and Regulations, specifically an Emergency Rule implemented September 28, 1993." Id. P 35. The plaintiffs allege that as of the date of the filing of their complaint in this action, the Board has not responded to their request that impartial hearing officers ["IHOs"] be assigned on a "rotational" basis. See id. P 36.
The plaintiffs appealed the IHO's decision not to recuse herself to the SED. By decision dated July 28, 1994, the State Review Officer, Daniel W. Szetela, affirmed the IHO's decision not to recuse herself. See id. P 3. The State Review Officer found that the method used by the defendant Board to select impartial hearing officers did not violate § 4404(1) of the New York Education Law, did not violate plaintiffs' due process rights under the IDEA, and that the hearing officer was impartial. See Pls.' Mem. of Law, Ex. 2, at 6-8 (No. 94-14, decision of State Review Officer Daniel W. Szetela dated July 28, 1994). The State Review Officer did not address the issue of the legality of the requirement that IHOs be attorneys, as he found that this issue was not appropriately raised in the petition or preserved for review. See id. at 3-4. Accordingly, both defendants concede that the plaintiffs have exhausted their administrative remedies, except for their claims concerning the requirement that IHOs be attorneys.
In their complaint, the plaintiffs allege that both the Board and the SED violated their due process rights as a result of four separate Board policies or practices. First, plaintiffs assert that the Board's system of selecting IHOs violates state law and IDEA's guarantee of due process in the educational placement of children with disabilities. See Compl. PP 32-40. Second, plaintiffs complain that Board employees, after typing up IHO decisions from handwritten originals, sign the typed decisions after the IHOs review them and then destroy the originals. See id. PP 42-52. Third, plaintiffs contend that because the IHOs are paid by the Board, they are de facto "employees" of the Board, and therefore are prohibited from conducting such hearings by 20 U.S.C. § 1415(b)(2).
See Compl. PP 54-62. Fourth, plaintiffs assail the Board's requirement that IHOs be attorneys. See id. PP 64-65. In addition to asserting claims under IDEA and the New York Education Law, the plaintiffs further contend that the above four claims also give rise to separate causes of action, and remedies, under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and 42 U.S.C. § 1983. See Compl. PP 66-67 (Rehabilitation Act claim), 68-69 (§ 1983 claim).
I. Standards Governing Motion to Dismiss
A district court should grant a motion to dismiss under Rule 12(b) of the Federal Rules of Civil Procedure only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)). In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. Id. at 249, 109 S. Ct. at 2906; see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (citing Fed. R. Civ. P. 8(a)(2) to demonstrate liberal system of 'notice pleading' employed by the Federal Rules of Civil Procedure).
II. Defendant Board's Motion to Dismiss the Complaint
Defendant New York City Board of Education moves to dismiss the plaintiffs' complaint in its entirety, and asserts six separate grounds therefor. This motion is unopposed by the plaintiffs, and a review of the Court file reveals that the plaintiffs repeatedly have been informed by each of the defendants of their failure to serve a response to this motion. Because the plaintiffs are represented by counsel, and have received ample notice of the pendency of the Board's motion against them, the Court hereby GRANTS by default the Board's motion to dismiss the complaint pursuant to Local Civil Rule 3(b) of the Eastern District of New York.
III. Defendant SED's Motion to Dismiss the Complaint
The New York State Education Department also moves to dismiss the plaintiffs' complaint in its entirety, and asserts several grounds in support of its application. First, the SED contends that this Court lacks personal jurisdiction over it because it was improperly served. Second, the defendant asserts that this action is barred by the statute of limitations. Third, the SED contends that the plaintiffs have failed to exhaust their administrative remedies with respect to Count IV of the Complaint, which assails the policy of the New York City Board of Education requiring IHOs to be attorneys. Fourth, the defendant, relying on a 1994 decision of this Court granting summary judgment in Jacky W. v. New York City Board of Education, 848 F. Supp. 358 (E.D.N.Y. 1994), contends that the IHOs are not employees for purposes of IDEA. Fifth, the defendant asserts that neither the Board's rotational selection process nor its method of recordkeeping violates the IDEA. In addition, pervasive throughout each of the defendant's arguments is its contention that the plaintiffs' Rehabilitation Act claims are merged into their IDEA claims, and that pursuant to Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989), it cannot be sued under 42 U.S.C. § 1983 because it is a state agency. See SED's Mem. of Law, at 2 n.4. As the Court now turns to discuss, even aside from the unavailability of a § 1983 claim, both the improper service of the SED and the expiration of the statute of limitations provide independent grounds warranting the dismissal of this action.
A. Improper Service of SED
Defendant SED contends that this Court lacks personal jurisdiction over it because it was improperly served. Specifically, this defendant asserts that the plaintiff attempted to effect service by serving a copy of the complaint, on March 3, 1995, upon the New York City office of the Attorney General. See Colucci Aff. P 3. Service, however, was never made on anyone at the SED. See id. P 4. According to the defendant, said service is insufficient to confer personal jurisdiction over it.
Rule 4(j)(2) of the Federal Rules of Civil Procedure requires that "service upon a state, municipal corporation, or other governmental organization subject to suit shall be effected by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summons or other like process upon any such defendant." Fed. R. Civ. P. 4(j)(2). The plaintiffs do not contend that they delivered a copy of the summons and the complaint to the SED's chief executive officer. Accordingly, for service to be valid, the Court must find that the plaintiffs complied with the method of service prescribed by New York law.
Section 307 of the New York Civil Practice Law and Rules ["CPLR"] governs the rendition of personal service upon the State or its agencies. As a general rule, CPLR § 307(1) provides that "personal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state." CPLR § 307(1) (McKinney 1990). This general rule prescribing the means of service upon the state is qualified, however, by CPLR § 307(2), which governs suits in which either a state officer has been sued solely in an official capacity, or--relevant to the case at bar--a state agency has been sued. CPLR § 307(2) provides in pertinent part as follows:
Personal service on a state officer sued solely in an official capacity or state agency, which shall be required to obtain personal jurisdiction over such an officer or agency, shall be made by (1) delivering the summons to such officer or to the chief executive officer of such agency or to a person designated by such chief executive officer to receive service, or (2) by mailing the summons by certified mail, return receipt requested, to such officer or to the chief executive officer of such agency, and by personal service upon the state in the manner provided by subdivision one of this section. . . . The chief executive officer of every such agency shall designate at least one person, in addition to himself or herself, to accept personal service on behalf of the agency. For purposes of this subdivision the term state agency shall be deemed to refer to any agency, board, bureau, commission, division, tribunal or other entity which constitutes the state for purposes of service under subdivision one of this section.