Abrams et al v. Carranza et al

Filing 44

MEMORANDUM OPINION AND ORDER: re: 21 MOTION for Reconsideration re; 18 Memorandum & Opinion, . filed by Arelis Araujo, John Burgess, Luis Araujo, Victor Arteaga, Dore Abrams, Piedad Angamarca, Elizabeth Abrams, 27 EM ERGENCY MOTION for Order to Show Cause for Temporary Restraining Order and Preliminary Injunction. filed by Luis Nunez, Sr., Nahoko Mizuta, Brenda Melendez, Neysha Cruz, Donna Cornett, Elizabeth Abrams, John Burgess, Patrick Donohu e, Kentaro Mizuta, Luis Araujo, Victor Arteaga, Dore Abrams, Piedad Angamarca, Vinnie Penna, Arelis Araujo, Eileen Mendez, Abdon Lopez, Alexandra Vera-Fiallos, Claudia Rivas, Janice Torres, Jhoana Juca, Carolyn Mason, Yvonne Davis, Sh annon Thomason, Yarely Mora. For the foregoing reasons, Plaintiffs Motion for a Preliminary Injunction and Temporary Restraining Order is DENIED and the Order to Show Cause is discharged. For the same reasons, Plaintiffs' Motion for Reconsideration is DENIED. The Clerk of Court is directed to close the motion at Docket Numbers 21 and 27.So Ordered. (Signed by Judge J. Paul Oetken on 10/13/2020) (js)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELIZABETH ABRAMS, AS PARENT
AND NATURAL GUARDIAN OF A.A.,
ET AL.,
Plaintiffs,

20-CV-5085 (JPO)
MEMORANDUM OPINION
AND ORDER

-vRICHARD CARRANZA, IN HIS
OFFICIAL CAPACITY, ET AL. ,
Defendants.

J. PAUL OETKEN, District Judge:
This matter was heard by order to show cause on September 17, 2020. Plaintiffs are the
parents of seventeen special education students who bring suit under the Individuals with
Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs seek a preliminary
injunction and temporary restraining order requiring Defendants, the New York City Department
of Education and Chancellor Richard Carranza (collectively, “DOE”) to implement a host of
administrative and judicial orders by immediately funding the students’ placement at the
International Institute for the Brain (“iBrain”) for the 2019-2020 school year. This decision
follows this Court’s earlier opinion and order dated August 5, 2020, which denied Plaintiffs’ first
application for a preliminary injunction and temporary restraining order seeking identical relief.
(See Dkt. No. 18.) Plaintiffs also move for reconsideration of that order. (Dkt. No. 21.)
Plaintiffs allege that DOE has failed to fund certain school-related services, including
special transportation and nursing services, since the start of the COVID-19 pandemic in March
2020. (See Dkt. No. 7-2 at 3; Dkt. No. 14.) The students’ pendency rights, Plaintiffs argue,
require immediate payment of the as-yet-withheld funds. DOE, meanwhile, does not contest the

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students’ placements at iBrain; rather, DOE argues (1) that not all students in the suit are entitled
to the same services; (2) that DOE has not received invoices for certain nursing services; and (3)
that iBrain has failed to provide sufficient information about its services during the COVID-19
pandemic to allow for proper reimbursement. (See Dkt. No. 12 at 2–3; Dkt. No. 13.) During the
July 30, 2020 hearing, the parties agreed that the students’ placements were not at risk
— instead, Plaintiffs seek reimbursement to iBrain for services allegedly provided from March to
July 2020. Plaintiffs now allege that they face eviction for unpaid rent, although the imminence
of that harm is lessened by Governor Cuomo’s September 18, 2020 Executive Order extended a
commercial eviction moratorium through October 20, 2020. (See Dkt. No. 38.) This state of
affairs has largely continued until the date of this opinion, with Plaintiffs alleging that DOE has
neither communicated further with Plaintiffs nor paid any pendency funds, and DOE alleging
that it has not received the additional individualized information for the 2019-20 school year that
it requires in order to approve and initiate payment. (See Dkt. No. 40.)
In the Second Circuit, the standards for a temporary restraining order and preliminary
injunction are the same. See Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). To
receive a preliminary injunction, plaintiffs must show (1) “a likelihood of success on the merits,”
(2) “that [plaintiffs are] likely to suffer irreparable injury in the absence of an injunction,” (3)
that “the balance of hardships tips in [plaintiffs] favor,” and (4) “that the public interest would
not be disserved by the issuance of [the] injunction.” Salinger v. Colting, 607 F.3d 68, 79–80
(2d Cir. 2010) (internal quotation marks omitted).
Plaintiffs again contend that the IDEA provides an “automatic injunction” that displaces
the irreparable harm inquiry. As before, however, all the authorities cited by Plaintiffs for that
proposition involve instances in which placement is threatened; the cases cited raise the issue of

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funding only when it directly affects placement. For example, in their motion for
reconsideration, Plaintiffs cite T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist. for the proposition
that the IDEA’s pendency provision “[r]equires that a school district continue to finance an
educational placement made by the agency and consented to by the parent before the parent
requested a due process hearing.” 752 F.3d 145, 152 (2d Cir. 2014) (quotation omitted). But that
citation comes in the context of the Second Circuit’s acknowledgment that the pendency
provision’s purpose is to allow “a disabled child to ‘remain in [his] then-current educational
placement’ while the administrative and judicial proceedings described above are pending . . .
[and] maintain the educational status quo while the parties’ dispute is being resolved.” Id.
(quoting 20 U.S.C. § 1415(j)). See also, e.g., Zvi. D. v. Ambach, 694 F.2d 904, 906 (2d Cir.
1982) (“To cut off public funds would amount to a unilateral change in placement, prohibited by
the Act.”).
In the present case, as the parties have agreed, there is no threat to the students’
placements. While the parties have certain disputes over payment — for example, whether
iBrain has provided the information DOE has requested for reimbursement and whether DOE
must pay transportation expenses for a period when the students were not using such services
— such disputes do not implicate irreparable harm, at least where, as here, there is no imminent
threat to the educational services themselves. See, e.g., Loveridge v. Pendleton Woolen Mills,
Inc., 788 F.2d 914, 916–18 (2d Cir. 1986) (“[W]here money damages are adequate
compensation, a preliminary injunction will not issue since equity should not intervene where
there is an adequate remedy at law.”). This conclusion is bolstered by the facts that these funds
are for a school year that ended months ago and that Plaintiffs have already filed another case in

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which they were granted prospective relief for the 2020-21 school year. See Araujo et al. v. New
York City Dep’t of Education, 20 Civ. 7032, 2020 WL 5701828 (S.D.N.Y. Sept. 24, 2020).
This Court does not question, as Plaintiffs argue, that cutting off funding for a student’s
agreed-upon placement violates that student’s pendency rights under the IDEA. (Dkt. No. 22 at
9–10.) (“[C]utting off public funds that are intended for a student’s pendency is prohibited
because the student’s right to pendency funding is an indelible aspect of the student’s right to
pendency . . . a disabled student’s right to pendency and his or her right to pendency funding are
a package deal.” (citations and internal quotation marks omitted)). Rather, this Court draws a
clear distinction between having pendency funds completely cut off and undertaking an
administrative process — including providing information — to receive that funding. Plaintiffs
have a right to the IDEA-guaranteed pendency funding; they do not, however, have a right to a
blank check. That is, they are not entitled to receive that funding in whatever manner they
desire, irrespective of reasonable documentation requirements of the DOE. A temporary
restraining order or preliminary injunction mandating immediate payment, however, is not
warranted, as Plaintiffs have once again failed to demonstrate a threat of irreparable harm, and
the authority they cite for the notion that pendency requires an “automatic injunction” involved
placement, not funding.
In this Court’s last order, it concluded that “should DOE not reimburse iBrain for
Students’ placements in a reasonable manner and timeline, Students may nonetheless seek
remedies for such harm in the underlying suit.” (Dkt. No. 18 at 3.) It also ordered the parties to
continue conferring in good faith regarding any remaining disputes. (Id.) The Court is troubled
by the fact that this conflict remains unresolved nearly three months after the suit was first filed.
As such, the parties shall, on or before October 20, 2020, file a status letter with this court setting

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forth: (1) the history of communication between Plaintiffs and DOE; (2) the information
requested by DOE; (3) the information provided by Plaintiffs in response to DOE’s requests; (4)
DOE’s rationale for finding such information inadequate; (5) Plaintiff’s rationale for failing to
provide any additional information requested by DOE.
For the foregoing reasons, Plaintiffs’ Motion for a Preliminary Injunction and Temporary
Restraining Order is DENIED and the Order to Show Cause is discharged. For the same reasons,
Plaintiffs’ Motion for Reconsideration is DENIED.
The Clerk of Court is directed to close the motion at Docket Numbers 21 and 27.
SO ORDERED.
Dated: October 13, 2020
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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