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Compulsory counterclaim not subject to exhaustion

In an issue of first impression, the court joined the Third and Fifth Circuits in concluding that the pre-suit requirements of 20 U.S.C. § 1415(i)(2) apply only to the party “bringing the action.” Because the counterclaim brought by a student and parent here was compulsory, they were not required to first exhaust their administrative remedies.


Jason Brady initially filed an administrative action in North Carolina, alleging that Charlotte-Mecklenburg County Board of Education, or CMS, violated the Individuals with Disabilities Act, or IDEA, by failing to provide his child A.B. with a free appropriate public education through an individualized education plan, or IEP.

The administrative law judge dismissed Brady’s action as time barred by a one-year statute of limitations. Following Brady’s successful appeal to a state hearing review officer, or SHRO, CMS filed an original civil action in the district court, seeking a judicial determination that the statute of limitations barred Brady’s administrative action. Brady and A.B. filed a counterclaim, asking the district court to decide the merits of the underlying IDEA claim.

The district court held that the statute of limitations did not bar Brady’s IDEA claim, but it held that Brady needed to exhaust his administrative remedies before bringing the merits to federal court. Both parties appeal.

Statute of limitations

The court agrees that Brady’s February 2013 email was a request for an IDEA evaluation. While it did not specifically say “I request an IEP evaluation,” the email did alert CMS that Brady wanted to discuss the issues raised by A.B.’s psychologist. He was in essence telling CMS that he wanted to discuss the psychologist’s conclusion that A.B. would qualify as other health impairment and be eligible for an IEP, and the psychologist’s questions regarding what services would be covered by an IEP. As such, CMS was required to provide Brady with a copy of the procedural safeguards when he made the request, as well as with prior written notice, or PWN, of its refusal to evaluate A.B.

CMS next argues that its failure to provide the PWN when Brady made the request did not “prevent” Brady from timely filing an administrative petition. But a parent who receives notice of procedural safeguards under section 504, but not notice of procedural safeguards under the IDEA would not have received notice of the right to the procedures enabling state administrative review of alleged IDEA violations, or any of the limitations imposed upon it.

CMS also argues that, because it mailed annual notices to parents advising them that the procedural safeguards were available online, Brady was not prevented from filing an administrative action. But the annual notices CMS sends to parents only advise that the parent-student handbook is available on the school’s website, and that within the parent-student handbook parents will find a list of various annual notices CMS is required to provide. While that list does include IDEA notices, the annual notice letter is insufficient to shield CMS. Consequently, Brady was prevented from filing a timely administrative petition because CMS withheld information it was required to provide him. Therefore, Brady’s IDEA petition is not barred by the statute of limitations.


The counterclaim asked the district court to decide the same issues at the heart of Brady’s underlying administrative petition. The district court dismissed the counterclaim, concluding that it lacked subject matter jurisdiction over it. The district court held that Brady and A.B. were not aggrieved parties so they could not bring a federal claim pursuant to 20 U.S.C. § 1415(i)(2). Alternatively, the district court held that it lacked subject matter jurisdiction because Brady and A.B. had not exhausted their administrative remedies.

Brady and A.B. argue their counterclaim is not subject to the IDEA’s pre-suit requirements because § 1415(i)(2)(A) deals only with an aggrieved party’s right to “bring a civil action.” Brady and A.B. argue that by filing a counterclaim, they are not “bringing” an action.

This court agrees with the Third and Fifth Circuits in concluding that § 1415(i)(2)(A)’s pre-suit requirements apply only to the party “bringing the action.” Therefore, so long as Brady and A.B.’s counterclaim is compulsory, they need not be aggrieved parties nor exhaust their administrative remedies. The court concludes that Brady and A.B.’s counterclaim is compulsory and therefore not subject to the IDEA’s pre-suit requirements. Thus, the district court’s dismissal of the counterclaim is reversed and remanded to the district court for further proceedings.

Affirmed in part, reversed in part and remanded.

Charlotte-Mecklenburg County Board of Education v. Brady, Case Nos. 22-1478, 22-1532, April 19, 2023. 4th Cir. (Thacker), from WDNC at Charlotte (Conrad). Christopher Zemp Campbell for Appellant/Cross-Appellee. Stacey Marlise Gahagan for Appellees/Cross-Appellants. VLW 023-2-112. 19 pp.