Mendez et al v. New York City Department of Education

Filing 38

ORDER: For the reasons above, the Court therefore DISMISSES the instant action. The Clerk of Court is directed to close this case. Any motion for attorneys' fees must be filed by November 3, 2020, with any opposition filed by November 17, 2020, and any reply by November 24, 2020. So Ordered. (Signed by Judge Andrew L. Carter, Jr on 10/13/2020) (js)

Case 1:19-cv-02945-ALC Document 38 Filed 10/13/20 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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MENDEZ, as parent and natural
guardian of A.C.,
Plaintiff,

v.
NEW YORK CITY DEPARTMENT OF
EDUCATION,

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10/13/2020
19-cv-02945 (ALC)
ORDER

Defendant.

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ANDREW L. CARTER, JR., District Judge:
The Court now considers two questions: whether this action under the Individuals with
Disabilities Education Act (“IDEA”) is moot and whether, in light of the Second Circuit’s May
18, 2020 decision in Ventura de Paulino v. N.Y.C. Department of Education, Plaintiff Eileen
Mendez fails to state a claim upon which relief may be granted. The Court answers both
questions in the affirmative and therefore dismisses this claim.
A.C., a student with developmental impairments, attended International Academy of
Hope (iHOPE) during the 2017-2018 school year. Compl. at 9. An unappealed March 13, 2018
Findings of Fact and Decision rendered by Impartial Hearing Officer Jeffrey J. Schiro in
Impartial Hearing Case No. 170982 established iHOPE as A.C.’s pendency placement. Compl.
¶¶ 10-11, 17. On June 21, 2018, A.C.’s parents provided the New York City Department of
Education (“DOE”) with a 10-Day Notice indicating that A.C. was being placed into the

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International Institute for the Brain (“iBRAIN”) educational program for the 2018-2019 school
year. Compl. ¶ 12.
On July 9, 2018, the parents brought a due process complaint under Impartial Hearing
Case No. 175170 against the DOE alleging, among other things, that the DOE did not provide
A.C. with a Free Adequate Public Education for the 2018-2019 school year and requesting as
relief, among other things, a “stay-put” or pendency order requiring the DOE to fund A.C.’s
placement at iBRAIN during the due process proceeding. Compl. ¶ 14. On December 25, 2018,
Impartial Hearing Officer John Farago issued a decision finding that A.C.’s program at iBRAIN
was her pendency placement and directing the DOE to fund such placement while the due
process proceeding ran its course. Compl. ¶ 18. The DOE appealed to the State Review Office.
Compl. ¶ 19. On March 26, 2019, State Review Officer Steven Krolak rendered a decision in
SRO Appeal No.19-015 reversing Impartial Hearing Officer Farago’s decision, including the
grant of pendency at iBRAIN. Compl. ¶ 20.
On April 2, 2019, Plaintiff initiated the instant action against the DOE. Plaintiff seeks a
preliminary injunction “[v]acating SRO Decision 19-015 dated March 26, 2019 and ordering the
DOE to fund A.C.’s pendency placement at iBRAIN for the 2018-2019 school year, until a final
adjudication on the due process complaint is complete”. Compl. at 5. Plaintiff also seeks a
judgment “[o]rdering other equitable relief and damages due to [Plaintiff] as a result of the
failure or delay in funding pendency placement for A.C.”; “[d]eclaring that the DOE violated
A.C.’s rights”; an award of costs and attorneys’ fees; and further relief as the Court deems
appropriate. Compl. at 5-6.
“Under Article III of the U.S. Constitution, ‘[w]hen a case becomes moot, the federal
courts lack subject matter jurisdiction over the action.’” Doyle v. Midland Credit Mgmt., Inc.,

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722 F.3d 78, 80 (2d Cir. 2013) (citing Fox v. Bd. of Trs. of State Univ. of N.Y., 42 F.3d 135, 140
(2d Cir. 1994)). To avoid mootness, “throughout the litigation, the plaintiff must have suffered,
or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a
favorable judicial decision.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citing Lewis v. Continental
Bank Corp., 494 U.S. 472, 477 (1990)) (internal quotation marks omitted). A court “may declare
the rights and other legal relations of any interested party seeking such declaration,” but only
“[i]n a case of actual controversy within its jurisdiction.” 28 U.S.C. § 2201(a); see MedImmune,
Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007) (“Our decisions have required that the dispute
be ‘definite and concrete, touching the legal relations of parties having adverse legal interests’;
and that it be ‘real and substantial’ and ‘admi[t] of specific relief through a decree of a
conclusive character, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.’”) (citations and internal quotes omitted). Put another way, a court
may not render a declaratory judgment without a controversy of “sufficient immediacy and
reality to warrant issuance of a declaratory judgment”. Golden v. Zwickler, 394 U.S. 103, 108
(1969) (citing Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
Here, Plaintiff initially requested relief related to the 2018-19 school year. Since the
initiation of this action, the due process proceeding resolved in Plaintiff’s favor. The DOE did
not appeal this favorable decision and fully funded A.C.’s placement at iBRAIN for the 2018-19
school year. ECF No. 36 at 2. The Court concludes that Plaintiff’s requested injunctive relief has
been rendered moot by the DOE’s fully funding A.C.’s 2018-19 tuition. The Court also
concludes that, A.C.’s 2018-19 tuition having been paid, it is without a controversy of “sufficient
immediacy and reality to warrant issuance of a declaratory judgment”. Zwickler, 394 U.S. at 108.

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Plaintiff’s arguments that the claim is not moot are unavailing. First, Plaintiff argues her
claim is not moot because she “seek[s] an award of damages for DOE’s violation of her
pendency rights”. ECF No. 37 at 2. But that argument is foreclosed by the Second Circuit’s
opinion in Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519 (2d Cir. 2020).
There, the Second Circuit considered an issue of first impression: “whether under the ‘stay-put’
provision of the IDEA parents who unilaterally enroll their child in a new private school and
challenge the child’s IEP are entitled to public funding for the new school during the pendency
of the IEP dispute, on the basis that the educational program being offered at the new school is
substantially similar to the program that was last agreed upon by the parents and the school
district and was offered at the previous school.” Id. at 524-25. The Second Circuit answered:
"[P]arents are not entitled to such public funding because it is generally up to the school district
to determine how an agreed-upon program is to be provided during the pendency of the IEP
dispute. Regardless of whether iBRAIN’s educational program is substantially similar to that
offered previously at iHOPE, the IDEA does not require the City to fund the Students’ program
at iBRAIN during the pendency of their IEP dispute; when the Parents unilaterally enrolled the
Students at iBRAIN, the Parents did so at their own financial risk.” Id. at 525.
This is the very situation of which Plaintiff complains. A.C. was enrolled at iHOPE, and
her parents unilaterally moved her to iBRAIN. Plaintiff sought pendency placement at iBRAIN,
arguing it was substantially similar to iHOPE. The DOE appealed a decision requiring it to fund
iBRAIN as A.C.’s pendency placement. The Second Circuit’s recent decision confirms that A.C.
was not entitled to pendency placement at iBRAIN. There was no violation of Plaintiff’s
pendency rights and therefore nothing for which Plaintiff may seek further damages.

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Plaintiff’s attempt to distinguish this case from Ventura de Paulino lacks merit.
Specifically, Plaintiff argues this case fits into an “exception” “where the school providing the
child’s pendency services is no longer available and the school district either refuses or fails to
provide pendency services to the child.” ECF No. 34 at 4 (citing Ventura de Paulino, 959 F.3d at
534 n.65). However, Plaintiff admits that iHOPE still exists, see ECF No. 34 at 4, and that
iHOPE was A.C.’s pendency placement, see ECF No. 36 at 2-3. Plaintiff seems to suggest that it
is significant that iHOPE became A.C.’s pendency placement by operation of law. ECF No. 37 at
3 (“While the main holding of Ventura de Paulino is that a parent may not veto a school
district’s choice of the school where a student’s educational program for pendency is to be
administered, here, it is indisputable that DOE did not choose iHOPE, or any other school, for
A.C.’s pendency. . . . In other words, DOE never recommended iHOPE for any purpose, at any
time. iHOPE became the location of A.C.’ s pendency placement, not by DOE’s choice, but
rather only by operation of law. Thus, DOE’s failure to provide pendency services for A.C. is a
crucial, distinguishing fact, as the Second Circuit found that DOE did choose iHOPE in Ventura
De Paulino.”). Contrary to Plaintiff’s assertion, this distinction is nowhere found in Ventura De
Paulino, nor does it persuade this Court.
Second, Plaintiff argues that the action is not moot because “unless Plaintiff’s claims are
fully adjudicated in this forum, Defendant will have evaded accountability for having violated
Plaintiff’s pendency rights, thereby remaining free to duplicate its wrongful conduct towards
Plaintiff in the future.” ECF No. 34 at 2. However, “[t]he voluntary cessation of allegedly illegal
activities will usually render a case moot if the defendant can demonstrate that (1) there is no
reasonable expectation that the alleged violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Mhany Mgmt., Inc. v.

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Cty. of Nassau, 819 F.3d 581, 603 (2d Cir. 2016) (citing Granite State Outdoor Advert., Inc. v.
Town of Orange, 303 F.3d 450, 451 (2d Cir.2002)). Even if A.C.’s pendency rights had been
violated, there is no indication in the record that there is a likelihood that this situation will recur
as to A.C. Nor does the record indicate that there is any effect of the alleged violation that has
not been resolved by the payment of A.C.’s tuition for the 2018-19 school year.
For the reasons above, the Court therefore DISMISSES the instant action. The Clerk of
Court is directed to close this case. Any motion for attorneys’ fees must be filed by November 3,
2020, with any opposition filed by November 17, 2020, and any reply by November 24, 2020.
SO ORDERED.
Dated:

October 13, 2020
New York, New York
_______________________________
HON. ANDREW L. CARTER, JR.
United States District Judge