Zimmerman et al v. Banks et al
Filing
46
MEMORANDUM AND ORDER: For the reasons stated in the attached memorandum and order, Plaintiffs' amended complaint is DISMISSED in its entirety. The Clerk of Court is respectfully directed to enter judgment and close this case. Ordered by Judge LaShann DeArcy Hall on 3/26/2024. (CG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
RACHEL ZIMMERMAN, Individually and as
Parent and Natural Guardian of H.W., DONNA
CORNETT, Individually and as Parent and Natural
Guardian of J.B., KEISHA ARCHIBALD,
Individually and as Parent and Natural Guardian of
N.A., LYNN CHAPERON, Individually and as
Parent and Natural Guardian of A.J.C.B.,
CAROLYN MASON, Individually and as Parent
and Natural Guardian of A.D., and MARILYN
BECKFORD, Individually and as Parent and
Natural Guardian of M.B.,
MEMORANDUM AND ORDER
23-cv-5192 (LDH) (PK)
Plaintiffs,
v.
DAVID C. BANKS and NEW YORK CITY
DEPARTMENT OF EDUCATION,
Defendants.
LASHANN DEARCY HALL, United States District Judge:
Plaintiffs commenced this action on July 7, 2023, seeking pendency orders pursuant to
the Individuals with Disabilities Act (“IDEA”), declaring each Student-Plaintiff’s pendency
placement to be at the International Academy of the Brain (“iBRAIN”) during the 2023–2024
school year. (Compl. ¶¶ 12–14, 123, ECF No. 1.) Plaintiffs amended their complaint on
October 31, 2023, seeking additional relief in the form of an injunction requiring the Department
of Education (“DOE”) to immediately fund each Student-Plaintiff’s tuition and related services,
and an order for Defendants to implement and comply with an administrative order from the
Impartial Hearing Officer (“IHO”) requiring Defendants to directly fund J.B.’s educational
placement/program for the 2023–2024 school year. (Am. Compl. at 25, ECF No. 29.)
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On November 21, 2023, Plaintiffs filed an “emergency” motion for a temporary
restraining order (“TRO”), seeking an order “requiring Defendants to immediately implement
each Student-Plaintiff’s Pendency Placement, by funding the Students’ tuition and related
services, including transportation and nursing, where applicable, for the 2023–2024 extended
school year at iBRAIN.” (Pl’s. Mem. L. Supp. Order to Show Cause for TRO and/or Prelim. Inj.
at 22, ECF No. 33.) That same day, Judge Hector Gonzalez denied the request for a TRO in a
minute order, finding that Plaintiffs had failed to demonstrate irreparable harm with respect to
the Student-Plaintiffs’ ability to continue attending school while the parties litigate this dispute,
and that Plaintiffs’ request for pendency determinations was moot because each of the six
Student-Plaintiffs had already received pendency determination through the administrative
process. (Min. Entry, Nov. 21, 2023.) On December 15, 2023, the Court held oral arguments on
Plaintiffs’ request for a preliminary injunction, where the Court denied Plaintiff’s request for
injunctive relief and ordered the parties to show cause why this matter should not be dismissed as
moot. (Min. Entry, Dec. 15, 2023.) This opinion addresses those arguments.
DISCUSSION
“Under the doctrine of mootness, the plaintiff’s ‘personal stake’ in the outcome of the
litigation ‘must be extant at all stages of review, not merely at the time the complaint is filed.’”
Stagg. P.C. v. U.S. Dep’t of State, 983 F.3d 589, 601 (2d Cir. 2020) (quoting United States v.
Sanchez-Gomez, 584 U.S. 381, 385 (2018)). “When the plaintiff no longer has a legally
cognizable interest in the outcome of the action, the case becomes moot and is no longer a ‘case’
or ‘controversy’ for the purposes of Article III.” Stagg, P.C., 983 F.3d at 601. “The hallmark of
a moot case or controversy is that the relief sought can no longer be given or is no longer
needed.” Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983).
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Courts must also consider whether the plaintiff’s claims are ripe for review. “Ripeness is
a constitutional prerequisite to exercise of jurisdiction by federal courts.” Nutritional Health All.
v. Shalala, 144 F.3d 220, 225 (2d Cir. 1998). For a cause of action to be ripe, and therefore
justiciable, “it must present a real, substantial controversy, not a mere hypothetical question. . . .
A claim is not ripe if it depends upon contingent future events that may not occur as anticipated,
or indeed may not occur at all.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 687 (2d
Cir. 2013) (internal quotation marks and citations omitted). “The doctrine’s major purpose is to
prevent the courts, through avoidance of premature adjudication, from entangling themselves in
abstract disagreements.” Id. (internal quotation marks and citation omitted).
Here, Defendants argue this matter should be dismissed because Plaintiffs’ pendency
claims are moot, and Plaintiffs’ claims relating to future pendency payments and final orders are
unripe. (Def's. Mem. L. Regarding Mootness of this Action, ECF No. 39.) The Court agrees.
As set forth in the Declaration of Sapna Kapoor, Senior Policy Advisor for the IHO
Implementation Unit, each Student-Plaintiff has already received the pendency determination
sought here. (Decl. Sapna Kapoor (“Kapoor Decl.”) ¶ 4, ECF No. 43.) Plaintiffs’ pendency
determination claims are therefore dismissed as moot. See (Dec. 15, 2023 Tr. at 3:22–4:5)
(conceding that Plaintiffs’ request for pendency orders is “not an issue any longer”); Frias v.
Banks, No. 23-CV-5803 (JGLC), 2023 WL 6690882, at *3 (S.D.N.Y. Oct. 12, 2023) (“Here,
Student-Plaintiffs . . . each received the exact relief they requested—a determination finding
iBRAIN as their pendency program . . . Accordingly, the relief they seek has already been
provided, and their claims are moot.”).
With respect to outstanding tuition payments, Plaintiffs concede that “all tuition
payments for all students except for one, A.D., were made current.” (Pls.’ Mem. L. Regarding
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Mootness of this Action (“Pls.’ Mem.”) at 2, ECF No. 41.) Furthermore, according to Ms.
Kapoor, Defendants have authorized and processed payments for “all six students” to this action,
including A.D. (Kapoor Decl. ¶ 5.) As Defendants work to process A.D.’s outstanding tuition
payments, Plaintiffs aver that “Defendants have only paid a portion of the current outstanding
balance.” (Pls.’ Mem. at 3.) That is, Plaintiffs effectively ask the Court to fast-track payments
already in the works. The Court declines to do so, particularly after A.D. already received the
pendency sought in the amended complaint, and processing of payments inevitably takes time.
See Mendez v. Banks, 65 F.4th 56, 63 (2d Cir. 2023) (acknowledging that “[a]ny agency will
need some amount of time to process and pay submitted invoices”); Ramos v. New York City
Dep't of Educ., 447 F. Supp. 3d 153, 157 (S.D.N.Y. 2020) (collecting cases where courts have
dismissed IDEA claims as moot because administrative orders granted the relief requested prior
to judicial order). Plaintiffs’ tuition claims are therefore dismissed as moot.
Plaintiffs advance several additional arguments in claiming “there is still an ongoing case
of controversy,” none of which the Court finds persuasive. (Pls.’ Mem. at 2.) For example,
although Plaintiffs concede that most tuition payments are current, they argue that “the
Defendants cannot be trusted to keep current on their Pendency payment obligations absent
Court order or oversight.” (Id. at 2.) This argument amounts to pure speculation, and the Court
declines to sustain this action based on the mere possibility that Defendants might later withhold
certain payments. Mendez, 65 F.4th at 61 (rejecting the argument “that prophylactic relief is
warranted because the DOE has a track record of making untimely payments and is predestined
to do the same here”).
In addition, Plaintiffs seek to avoid dismissal because “the parties disagree regarding the
binding language relevant to the Student-Plaintiffs in this matter with outstanding transportation
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and nursing services costs for the 2023–2024 school year.” (Pls.’ Mem. at 2.) According to
Plaintiffs, there are outstanding transportation balances for H.W., N.A., J.B., A.J.C.B., and M.B.,
despite Defendants’ request for “additional documentation” to process payment. (Id. at 3–4.)
Plaintiffs also claim an outstanding nursing balance for A.J.C.B., as Plaintiffs appeal a
November 4, 2023 administrative decision requiring “evidence of services that were provided” to
determine funding eligibility. (Id. at 5.)
Plaintiffs’ claims for transportation and nursing cost are unripe. Notably, Plaintiffs never
allege that Defendants denied the request for transportation costs, but rather, “Plaintiffs have
repeatedly submitted the necessary documentation” and “Defendants maintain that they need
further documentation to confirm whether the Student utilized the service before they can issue
payment.” (Id.) Indeed, according to Ms. Kapoor, Defendants are awaiting necessary
documentation to process transportation payments for H.W., A.J.C.B., and M.B. (Kapoor Decl.
¶¶ 7, 12, 15.) For N.A. and J.B., Defendants have processed transportation payment, and “[t]he
transportation service provider should receive this payment soon.”1 (Id. ¶¶ 8, 10.) With respect
to outstanding costs for nursing services, Ms. Kapoor likewise states that Defendants will
process payments “in the next few days,” which the nursing services provider will promptly
receive. (Id. ¶ 13.) Thus, as with the outstanding tuition payments, the Court declines to
intervene in the administrative process to fast-track transportation or nursing payments that are
1
Plaintiffs cite to Abrams v. New York City Dep't of Educ., where the Southern District of New York found that
plaintiffs were required to pay the transportation company “even if the students did not utilize the transportation
services.” No. 20-CV-5085 (JPO), 2022 WL 523455, at *4 (S.D.N.Y. Feb. 22, 2022). That decision rested on the
court’s reading of the pendency orders and contracts with the transportation company, which “plainly provide[d]
that payment is required whether the student uses the services or not.” Id. Although Plaintiffs here complain of
outstanding transportation costs, the amended complaint does not seek to enforce any contract with the
transportation companies, nor can the Court infer that the pendency orders here match those in Abrams. See also
Donohue v. Banks, No. 22 CIV. 8998 (JPC), 2023 WL 6386014, at *8 (S.D.N.Y. Sept. 30, 2023) (“Here, Plaintiffs
do not—and indeed could not—tether their proffered interpretation to the precise language of the subject
administrative orders, which vary from student to student and thus impose different obligations on the DOE as to
each student.”).
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being processed or require additional authorization. Of course, if Defendants ultimately fail to
remit rightfully owed payments on these matters, Plaintiffs may file a separate lawsuit. Until
then, their claims are unripe.
CONCLUSION
For the foregoing reasons, this matter is DISMISSED in its entirety. The Clerk of Court
is respectfully directed to close this case.
SO ORDERED.
Dated: Brooklyn, New York
March 26, 2024
/s/ LDH
LASHANN DEARCY HALL
United States District Judge
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