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.
