D.N. v. New York City Dept. of Education
U.S. DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Schools and Education
Judge Naomi Buchwald
Addressing only two of parent D.N.'s claims, an independent hearing officer (IHO) found New York City's Education Department did not offer D.N's child a free appropriate public education. The IHO ordered reimbursement for the child's private school placement. Despite reversing the IHO, a state review officer (SRO) refused to consider the unaddressed claims. The SRO found D.N. waived them by not cross-appealing the IHO's decision not to reach them. Holding that D.N.'s failure to cross-appeal did not waive reviewability of the unaddressed claims, district court remanded the matter to the SRO. Considering the four factors in U.S. Sec. & Exch. Comm'n v. Citigroup Global Mkts, the court denied the department's motion to stay the remand order pending appeal to Second Circuit. The department offered no compelling reasons supporting a stay. Even if the aggrievement requirement of 8 NYCRR §200.5(k)(1) were not a prerequisite to filing a cross-appeal, the failure to file such an appeal may only affect a waiver where the non-appealed issue was adverse to the non-appealing party. Further the department did not show irreparable injury absent a stay.