The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
In a Memorandum and Order dated December 7, 2012 (the "Order"), we remanded this matter to the SRO to address arguments that the Parent raised at both levels of the administration review process, but that neither the IHO nor the SRO addressed (the "Unaddressed Claims").*fn1 The Department now seeks a stay of the Order pending its appeal to the Second Circuit. For the reasons set forth below, we deny the Department's request.
The relevant facts and procedural history are set forth in the Order, familiarity with which we assume. See D.N. v. N.Y.C. Dep't of Educ., No. 11 Civ. 9223 (NRB), 2012 WL 6101918, at *2-3 (S.D.N.Y. Dec. 10, 2012). Briefly, in September 2010, the Parent requested an impartial hearing to challenge the adequacy of the IEP, as well as the Department's proposed placement for the 2010-11 school year. In her request for an impartial hearing, the Parent raised a host of claims, only two of which the IHO reached. Relying exclusively on those claims, the IHO found that the Department failed to offer the Student a FAPE during the 2010-11 school year. Accordingly, the IHO ordered reimbursement for the Student's unilateral placement at the Rebecca School.
The Department appealed the IHO's decision to the SRO. In its appeal
petition, the Department challenged the IHO's findings and urged the
SRO to dismiss the Unaddressed Claims on their merits.*fn2
The Parent did not cross-appeal any portions of the IHO's
decision, including the IHO's silence with respect to the Unaddressed
Claims. Nonetheless, the Parent maintained many of the Unaddressed
Claims in her answer to the Department's petition.
The SRO ultimately reversed the IHO's findings. However, the SRO refused to consider the Unaddressed Claims as alternative bases for ruling in the Parent's favor. According to the SRO, the Parent waived the Unaddressed Claims by failing to cross-appeal the IHO's decision not to reach them.
The Parent appealed the SRO's decision to this Court. In her pleadings and memoranda, the Parent pursued, inter alia, the Unaddressed Claims. In the Order, we held that the Parent's failure to cross-appeal the Unaddressed Claims did not waive their reviewability. Accordingly, we remanded this matter to the SRO. Pending the SRO's decision, we declined to reach the merits of the matters that the SRO and the IHO did address. The Department now seeks a stay of the Order.
In deciding whether to exercise our discretion to issue a stay pending appeal, we consider four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." U.S. Sec. & Exch. Comm'n v. Citigroup Global Mkts. Inc., 673 F.3d 158, 162-63 (2d Cir. 2012) (internal quotation marks omitted).
Here, the Department has not offered any compelling arguments in support of its request for a stay. As an initial matter, we find it highly doubtful that the Department will succeed on the merits, not least because we do not believe that the Court of Appeals has jurisdiction to hear an appeal from the Order. It is well established that an appellate court may only exercise jurisdiction over appeals from a "final" district court decision. 28 U.S.C. § 1291 (emphasis added). A decision is final when it "conclusively determines all pending claims of all the parties to the litigation." Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008). Here, the Order does not represent a "final act in the case," Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106, 112 (2d Cir. 2008) (internal quotation marks omitted), nor did we so intend it.*fn3 To the contrary, we fully anticipate reaching the merits of the Student's claims once we receive the benefit of the SRO's guidance.
If the Court of Appeals disagrees with our assessment and finds the Order appealable, we nonetheless do not believe that the Department will succeed on the merits for the reasons set forth in the Order. See D.N., 2012 WL 6101918, at *4-5. Nor do we believe that the Department has offered compelling new arguments that warrant a stay and/or reconsideration of our decision. The Department essentially contends that the Order conflates two separate provisions of Title 8 of the New York Code of Rules and Regulations: (i) section 200.5(k)(1), which states that "[a]ny party aggrieved" by the IHO's decision may appeal to the SRO, 8 N.Y.C.R.R. § 200.5(k)(1), and (ii) section 279.4(b), which provides that "[a] respondent who wishes to seek review" of the IHO's decision "may cross-appeal from all or a portion of th[at] decision," id. § 279.4(b). The Department maintains that section 200.5(k)(1)'s aggrievement requirement "governs the initial appeal to the SRO" but does not apply to the "separate procedure for cross-appeals." Letter from Gloria M. Yi, Assistant Corp. Counsel, City of N.Y. Law Dep't, to Court 2 (Jan. 7, 2013). Under the Department's interpretation, even if the unaggrieved Parent could not have initiated an appeal from the IHO's decision, she was nonetheless required to cross-appeal the Unaddressed Claims to preserve them for subsequent review. We have rejected this position in the Order. See D.N., 2012 WL 6101918, at *4 (citing Drax v. Reno, 338 F.3d 98, 105-06 (2d Cir. 2003)).
But even assuming, arguendo, that (i) section 200.5(k)(1)'s aggrievement requirement is not a predicate to cross-appealing an IHO's decision*fn4 and (ii) an IHO's silence is an appealable decision,*fn5 the relevant statutes and regulations do not require a respondent to cross-appeal a non-adverse decision to preserve its reviewability. Section 200.5(j)(5)(v) provides that an IHO's decision "shall be binding upon both parties unless appealed to the" SRO. 8 N.Y.C.R.R. § 200.5(j)(5)(v); see also 20 U.S.C. § 1415(i)(1)(A); 34 C.F.R. § 300.514(a). However, the IDEA explicitly links the binding nature of an IHO's decision --and, thus, waiver of reviewability --- to a party's aggrievement. See 20 U.S.C. § 1415(i)(1)(A) (providing that an IHO's decision "shall be final, except that any party involved in such hearing may appeal such decision under the provisions of subsection (g)"); id. § 1415(g)(1) (permitting only an "aggrieved" party to appeal the IHO's decision); see also 34 C.F.R. § 300.514(a)-(b). Thus, even if section 200.5(k)(1)'s aggrievement requirement is not a prerequisite to filing a cross-appeal, the failure to file such an appeal may only effect a waiver where the non-appealed issue was adverse to the non-appealing party.*fn6
The Department speculates as to the practical effects of our decision, but does not carry its burden in demonstrating that the Department will suffer irreparable injury absent a stay. The Department contends, inter alia: "If parents were not required to cross-appeal all issues they wished to raise to support their unilateral placements of their children in a private school setting, they would be permitted to deprive the state of the opportunity to correct these purported shortcomings merely by staying silent on the subject until reaching federal court." Letter from Gloria M. Yi, Assistant Corp. Counsel, City of N.Y. Law Dep't, to Court 3 (Jan. 7, 2013).
The Department's concern is largely academic. As noted in the Order, a parent's ability to raise claims at any level of the proceedings is circumscribed by the allegations in the due process complaint. See 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. § 300.511(d); 8 N.Y.C.R.R. § 200.5(j)(1)(ii). Therefore, a parent simply cannot "stay silent" on a claim and raise it for the first time in federal court. See, e.g., B.P. v. N.Y.C. Dep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012) ("The scope of the inquiry of the IHO, and therefore the SRO and this Court, is limited to matters either raised in the Plaintiffs' impartial hearing request or ...