Normally, when I am putting together a blog entry, what I do is that I find an interesting case that comes out during the week and then: analyze that case; discuss the court’s reasoning and my take on it; and then offer takeaways. This week I did see a case that met that criteria (it is § III below, which is done in that format). However, that case very much relates back to a previous blog entry of mine. Accordingly, I wasn’t entirely comfortable making it a separate blog entry by itself. I did think it would be useful to make it a part of a blog entry with other cases. Also, this week was the perfect time to blog on several cases at once because I found cases, including the one mentioned above, that update three different blog entries of mine. The three different cases include the following: 1) the latest in Argenyi v. Creighton University; 2) whether when you have a person covered by IDEA, is the exhaustion requirement jurisdictional or is it an affirmative defense?; and 3) when might the four year federal statute of limitations apply instead of the state’s personal injury statute of limitations. I will place a discussion of each of these in its own category and so the reader is free to just focus on that particular category or all of them depending on his or her preference.

Just Because a Defendant Is Successful in Warding off an Intentional Discrimination Claim, that Does Not Mean that the Defendant Isn’t on the Hook for Substantial Dollars

On May 7, 2014, the District Court of Nebraska in an opinion and order from Chief Judge Laurie Camp in the case of Argenyi v. Creighton University, which is also the subject of one of my most popular blog entries , the court awarded Argenyi’s attorneys $449,009 in attorneys fees as well as $18,998.42 in nontaxable costs, and $10,365 in expert fees. This case was tried to a jury and after more than two days of jury deliberation in deadlock, the lawyers for both sides agree to accept the verdict by a majority of eight jurors. That majority returned a verdict in favor of the plaintiff with respect to the university discriminating against the plaintiff based on a disability by failing to provide him with necessary auxiliary aids and services during his first two years of medical school and that it would not have been an undue burden for the University to provide such as auxiliary aids and services. However, the majority of eight jurors also decided that the university had not intentionally discriminated against the plaintiff and therefore awarded him no damages. That decision led to a request from the plaintiff for declaratory, equitable, and injunctive relief. The court acted on that request by awarding the plaintiff declaratory, equitable, and injunctive relief. In particular: beginning in the fall semester of 2014 and continuing until his graduation or the point in time when he discontinues enrollment as medical student, university had to provide the plaintiff with auxiliary aids and services for his effective communication, including CART in the classroom & supported oral interpreters in small group and clinical settings. Since the plaintiff was able to get this kind of relief, the court found that he had prevailed and was entitled to attorneys fees and costs. The rest of the opinion talks about why the court felt that the petition for fees have to be reduced in the manner that it did. In the end, the court settled on the figures noted above.


1) In this case, the University was successful in fending off an intentional discrimination claim. However, the University wind up being on the hook for a considerable amount of money anyway, $478,363.42 to be precise.

2) With respect to determining the hourly rate for an attorney, it is going to be the prevailing market rate in the relevant community that is the key and not the community where the attorney is from. Considering that a person’s practice can be national, this is something to keep in mind.

3) The lesson here is that it isn’t unusual for discrimination, particularly at the graduate school level, to not be able to satisfy the deliberate indifference standard necessary for getting damages under title II of the ADA or § 504 the Rehabilitation Act, but nevertheless there is a strong case for discrimination short of that. In those situations, this case stands for the proposition that such discrimination can result in substantial costs to the defendant even if it does not take the form of damages per se to the plaintiff. Also, keep in mind, that the defense certainly paid an equivalent sum of money to its own attorneys for the defense of the case than what it wound up paying to the plaintiff’s attorneys in fees and costs.

The Four-Year Federal Statute of Limitations

One of my more popular blog entries concerns what is the applicable statute of limitations for ADA claims. In that blog entry, I posited that it may be possible under certain circumstances that the four-year federal statute of limitations might apply. Until May 7, 2014, that was nothing more than a theory. Thanks to an unpublished decision from the 11th Circuit, Horsley v. The University of Alabama, 2014 WL 1797019 (11th Cir. May 7, 2014), it is still a theory but one that is in play if it is set up right. In this case, a pro se plaintiff filed suit against the University of Alabama, the Board of Trustees, and several faculty members alleging violations of title II of the ADA, § 504 the Rehabilitation Act, FERPA, and also state law claims as well. Suit was filed after the state’s applicable statute of limitations had run. Here is the key part of the decision for our purposes:

“While Horsley argued in subsequent pleadings that her claim was not cognizable before the enactment of the ADA amendments act of 2008 and that she and the defendants had a contract under seal, our case law makes clear that dismissal under rule 12(b)(6) on statute of limitations grounds depends only on the face of the complaint. [Citations omitted] Thus, the District Court properly limited consideration to the face of Horsley’s complaint and ignored any argument in Horsley’s subsequent pleadings.”

What this means is that given a situation where a claim is now in play thanks to the amendments act that would not have been in play before the amendments act, the four-year federal statute of limitations is very much a possibility providing it is all set up in the complaint. What might be such a situation? For example, it is entirely possible that an institution of higher education could assume that a student with a particular disability would have a particular disability fully mitigated by medication, and therefore, they would treat that student as if they were a person without a disability. The result of that approach being that the University then takes adverse action against that student when the disability manifests itself, such as when the student misses classes, exams, etc. as a result of dealing with that disability. This case suggests that if in the complaint the plaintiff were to lay out what his or her disability is, the mitigating measures involved, and how the person now has a claim and before didn’t, the federal for year statute of limitations might apply.

Is the IDEA Exhaustion Requirement Jurisdictional or an Affirmative Defense?

In a previous blog entry, I talked about how where a person with a service dog that was covered under IDEA To exhaust the administrative remedies in that law before they can bring a cause of action alleging violations of title II of the ADA or § 504 the Rehabilitation Act. That is absolutely true, but the question remains is that administrative exhaustion requirement jurisdictional or is it up to the defense to allege it as an affirmative defense? It makes all the difference in the world because if it is jurisdictional, the defense can get it thrown out on a motion to dismiss. Whereas, if it is an affirmative defense, and before the case will be thrown out, substantial fact-finding, with considerable expenditure and attorneys fees by the defense, would have to occur first.


In Everett H. Ex rel. Havey v. Dry Creek Joint Elementary School District, _F. Supp. 2d_, 2014 WL 1779340 (E.D. Cal. March 26, 2014), a student who had delayed myelination and a diagnosis on the autism spectrum disorder resulting in motor and neurological delays such as language impairment, attended the Dry Creek elementary school district for approximately 5 years. During that period there were disagreements about the special education program provided by the district to the student. According to the plaintiffs, the school district made various errors with respect to the provision of a free appropriate public education, including in the IEP process, the student’s disability designation placement, and in providing education to the student in the least restrictive environment. Further, the plaintiff alleged that once they began advocating for the student’s rights, the school district engaged in a series of retaliatory activity. The procedural aspects of the case are rather complicated but in the end no final administrative due process hearing decision was ever issued on any of the alleged education shortcomings raised by the plaintiffs.

Court’s Reasoning:

In deciding that the IDEA exhaustion requirement is not jurisdictional, but rather an affirmative defense, the court reasoned as follows:

1) Citing to a Ninth Circuit decision, nothing in the exhaustion provisions of the IDEA statute mentioned the jurisdiction of federal courts. Further, nothing in the statute mentioning the jurisdiction of federal courts relevant to a matter such as this required exhaustion either. Accordingly, in the Ninth Circuit, which is also the rule in the 7th and 11th circuits, IDEA’s exhaustion requirement is a claims processing provision that IDEA defendants may offer as an affirmative defense. As such, any assessment as to whether administrative remedies were properly exhausted is better addressed through a fact specific assessment of the affirmative defense rather than through an inquiry about whether the court had the power to decide the case at all.

2) In addition to due process hearings, IDEA matters can also be resolved through a more informal and less adversarial complaint resolution proceeding with a state education agency. In this particular situation, plaintiffs alleged in their complaint that they filed numerous complaint resolution proceedings against the California Department of Education but the California Department of Education refused to investigate those claims thereby making it difficult if not impossible for the plaintiff to exhaust administrative remedies. Further, the plaintiff alleged that they filed additional complaints with the office of civil rights and the US Department of Justice regarding their complaint against the school district and the California Department of Education. Given these facts and case law saying that a person does not have to complete the administrative exhaustion process where such efforts would be futile, the court found that dismissal of the complaint at this point would not be proper.

3) The exhaustion requirement doesn’t apply where matters are outside of individualized free appropriate public education issues. In this particular case, the complaint revealed a challenge to the overall policies and practices of the California Department of Education and not simply those related only to a particular student.

4) Exhaustion is also not required where an entity act contrary to federal law. In this case, the plaintiffs alleged in their complaint that the California Department of Education refused to investigate itself, contrary to the requirements of federal law.

5) IDEA exhaustion requirements do not apply to plaintiffs claiming that school officials inflicted physical and emotional abuse on their child.


1. It is absolutely true that to proceed under § 504 and title II of the ADA where a person is also in the individual disabilities education act process, exhaustion of the IDEA process is a requirement. However, this particular case means that such a requirement is not jurisdictional. Rather, it is an affirmative defense to be raised. Therefore, since it is an affirmative defense, that means if the defense does not raise it in their answer, the affirmative defense is waived.

2. There may be multiple situations where administrative remedies were not exhausted but the facts are such that the non-exhaustion of the administrative remedies will be forgiven by the court.