The opinion of the court was delivered by: Reggie B. Walton United States District Judge
The plaintiff, Jackeline Maynard, filed this lawsuit on behalf of her sixteen-year-old son, D.M., a child who requires special education services, appealing an administrative Hearing Officer Decision ("HOD") issued pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 (2000).*fn1 Complaint ("Compl.") ¶ ¶ 7, 18. Currently before this Court is the Defendants' Motion to Dismiss Complaint ("Defs.' Mot.").*fn2 For the reasons set forth below, the Court concludes that the defendants' motion should be granted.
D.M., a child with significant academic and behavioral problems, was enrolled at Cesar Chavez Public Charter School ("Cesar Chavez") during the 2005-2006 and 2006-2007 academic school years. Id. ¶ 7-9. In response to D.M.'s poor academic performance, in 2007 the plaintiff requested that Cesar Chavez evaluate D.M. for special education services. Id. ¶ 10. Specifically, the plaintiff's counsel requested that "[Cesar Chavez] conduct a full battery of academic evaluations, and that a Functional Behavioral Assessment and Behavioral Implementation plan be completed while the evaluations were pending." Id. On June 1, 2007, the plaintiff's attorney attended a status meeting with Cesar Chavez personnel, at which time the school proposed, and the plaintiff's attorney approved, an Individual Education Plan ("IEP") for D.M. that was scheduled to commence on June 4, 2007. Compl., Attachment ("Attach.") (District of Columbia Office of the State Superintendent of Education Office of Compliance & Review Decision & Order dated October 31, 2007) ("October 31, 2007 Decision and Order") at 5. D.M. did not attend summer school as required by Cesar Chavez, so the school dropped D.M. from its student roll on July 11, 2007. Id. The plaintiff sent a letter dated August 14, 2007 to Cesar Chavez complaining that the June 1, 2007 IEP was inappropriate, and notifying Cesar Chavez of her intention to place D.M. at Accotink Academy at the public's expense. Id. The plaintiff "[requested] a due process hearing" to secure funding from the District of Columbia Public School System for D.M.'s education at Accotink. Compl. ¶ 16. A hearing on the petition was conducted by Hearing Officer H. St. Clair on October 24, 2007, and the petition was dismissed with prejudice in an HOD issued October 31, 2007. Id. ¶ 17 & Attach. (October 31, 2007 Decision and Order) at 4. The HOD advised the plaintiff that an "appeal can be made to a court of competent jurisdiction within ninety (90) days of the issue date of this decision." Id., Attach. (October 31, 2007 Decision and Order) at 4.
The plaintiff initially filed her complaint in this Court on January 31, 2008, but the Court rejected the filing due to procedural deficiencies, including failure to hole-punch and staple the filing, failure to provide specified information in the case form, failure to provide duplicate copies, and failure to provide a portable document format ("PDF") version of the filing on a computer disk. Pl.'s Opp'n, Exhibit 1 (Order of the Honorable Thomas F. Hogan dated February 1, 2008). The plaintiff did not refile the complaint until February 15, 2008. Compl. at 1.
On February 25, 2008, the defendants filed the motion to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) that is now before the Court, asserting that the complaint is time-barred by the 90-day statutory limitations period established by the IDEA for judicial review of adverse HODs. Def.s' Mem. at 2.
Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), which governs motions to dismiss for lack of subject matter jurisdiction. The plaintiff bears the burden of showing that the Court has subject matter jurisdiction by a preponderance of the evidence. Erby v. United States, 424 F. Supp. 2d 180, 182 (D.D.C. 2006) (citing, among others, Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). When ruling on a motion to dismiss, "a court must accept as true well-pleaded factual allegations, and draw reasonable inferences in favor of the plaintiff." J.S. v. District of Columbia, 533 F. Supp. 2d 160, 161 (D.D.C. 2008). However, because the court cannot hear the plaintiff's claim without subject matter jurisdiction, "a court resolving a motion to dismiss under Rule 12(b)(1) must give the complaint's factual allegations closer scrutiny than required for a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim." Lipsman v. Sec'y of Army, 257 F. Supp. 2d 3, 6 (D.D.C. 2003) (citing Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001); 5A Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. 2d § 1350). In making its determination, the Court may consider information outside the pleadings. Id. (citing Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992)).
The defendants contend that this Court does not have subject matter jurisdiction over the plaintiff's complaint because it was filed outside of the IDEA's 90-day statute of limitations period. Defs.' Mem. at 2. Specifically, the defendants assert that the IDEA required filing of the plaintiff's complaint by January 29, 2008, therefore rendering its filing untimely regardless of whether the Court considers the filing to have occurred on January 31, 2008, or February 15, 2008. Id. at 1-2. In opposition, the plaintiff responds that the complaint did not have to be filed until February 1, 2008, and that the January 31, 2008 filing was therefore timely. Pl.'s Opp'n at 1.
The plaintiff seeks relief from an adverse HOD issued October 31, 2007. Compl., Attach. (October 31, 2007 Decision and Order ) at 7. Faced with the issuance of an adverse HOD, the IDEA affords the aggrieved party the right to bring a civil action in either State court or Federal District court. 20 U.S.C. § 1415(i)(2)(A) (2000). "The party bringing the action shall have 90 days from the date of the decision of hearing officer[,i.e., a HOD,] to bring such an action, or, if the State has an explicit time limitation for bringing such action under this subchapter, in such time as the State law allows." 20 U.S.C. § 1415(i)(2)(B)*fn3 ; see R.P. v. District of Columbia, 474 F. Supp. 2d 152, 153 (D.D.C. 2007) ("the limitations period in Section 1415 of IDEA begins to run from the date of the hearing officer's decision"). The District of Columbia having adopted no explicit time limitation for filing suit under Section 1415 of the IDEA, the 90-day statute of limitations established by Congress applies to this case.*fn4
An issue arising from the application of the IDEA 90-day limitations period is whether an untimely filing acts as a bar to the subject matter jurisdiction of this Court, or whether such a violation must be pled as an affirmative defense that is subject to exceptions, such as equitable tolling. The issue has generated disparate appellate opinions and has not yet been fully resolved. See Smith v. District of Columbia, 496 F. Supp. 2d 125, 128 n.1 (D.D.C. 2007) ("The Supreme Court has admitted that the distinction between jurisdiction and the requirements to state a claim for relief have become 'confused or conflated concepts.'") (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 503 (2006)).
The Seventh Circuit Court of Appeals has concluded that "timely filing may be a condition to success, but it is not a jurisdictional requirement in federal court." Farzana v. Ind. Dep't of Educ., 473 F.3d 703, 705 (7th Cir. 2007) (holding that procedural hurdles to IDEA claims are not jurisdictional and therefore may be subject to waiver and forfeiture). The Farzana court posits that 28 U.S.C. § 1331 confers federal courts jurisdiction over claims arising from federal law, and therefore procedural rules of a federal statute "are not jurisdictional . . . no matter how unyielding they may be, unless they set limits on the federal courts' adjudicatory competence." Id.
The United States Supreme Court has since directly addressed the issue of the jurisdictional significance of a federal statute's limitations period. In Bowles v. Russell, the Supreme Court emphasized that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature." __ U.S. __, __, 127 S.Ct. 2360, 2362 (2007). The majority discussed several past Supreme Court cases that "recognized the jurisdictional significance of the fact that a time limitation is set forth in a statute." Id. at 2364. The Supreme Court cited Congress' sole power to determine the subject matter ...