UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x SUSANNE ERDE and MICHAEL ERDE, Individually and on behalf of J.E., a minor,
Plaintiffs, MEMORANDUM AND ORDER
-against- Case No. 1:21-cv-00514-FB-MMH
MEISHA PORTER, in her official capacity as Chancellor of the New York City Department of Education, and the NEW YORK CITY DEPARTMENT OF EDUCATION
Defendants. ------------------------------------------------x
Appearances: For the Defendants: For the Plaintiffs: PHILLIP S. FRANK, ESQ. RORY J. BELLANTONI, ESQ. The City of New York Law Department Brain Injury Rights Group 100 Church Street 300 East 95th Street, Suite 130 New York, NY 10007 New York, NY 10128
BLOCK, Senior District Judge:
Plaintiffs Susanne and Michael Erde (“the Erdes”), parents of minor student
J.E., bring this action individually and on behalf of J.E. against Meisha Porter, in
her official capacity as Chancellor of the New York City Department of Education,
and the New York City Department of Education. The Erdes seek a preliminary
injunction to enforce an administrative award of tuition for the 2019-2020 school
year granted by an Impartial Hearing Officer (“IHO”) under the Individuals with
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Disabilities Education Act (“IDEA”). The award was subsequently reversed on
administrative appeal.
For the following reasons, the plaintiffs’ motion is denied.
I.
J.E. is a minor student who suffers from a brain injury that renders him non-
verbal and non-ambulatory. He requires a high degree of care and attention to
attend to his basic daily needs, as well as special education and related services.
J.E.’s access to appropriate education is guaranteed through IDEA, which provides
that children with certain physical or intellectual disabilities have a right to a free
appropriate public education (“FAPE”) through an Individualized Education
Program (“IEP”) developed by the relevant school district. 20 U.S.C. § 1400.
On July 8, 2019, the Erdes brought an administrative due process claim
against the New York City Department of Education (“DOE”),1 claiming that the
DOE did not provide J.E. with FAPE for the 2019-2020 school year. Among other
things, the Erdes requested that the DOE be ordered to pay J.E.’s tuition during the
pendency of the operative due process proceedings.
To ensure the stability of a child’s access to education and prevent a school
district from transferring a child to a different school without parental consent, the
IDEA’s “pendency” or “stay-put” provision provides that during the pendency of
1 The DOE receives federal funding pursuant to IDEA.
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due process proceedings under IDEA, the child “shall remain in the then-current
education placement of the child,” unless “the State or local educational agency
and the parents otherwise agree.” 20 U.S.C. § 1415(j). The Erdes claim that the
pendency provision entitles them to reimbursement from the DOE for J.E.’s 2019-
2020 tuition. The IHO agreed and in an order dated January 12, 2021 directed the
DOE to reimburse the Erdes for J.E.’s 2019-2020 tuition. On January 30, 2021, the
Erdes filed a motion in this Court to enforce the IHO order via preliminary
injunction. However, the DOE subsequently appealed the IHO order, and on
March 17, 2021, a State Review Officer (“SRO”) reversed the IHO decision that
the Erdes now seek to enforce. On May 11, 2021, the Erdes filed an Amended
Complaint seeking a reversal of the SRO decision.
II.
The SRO reversal of the initial IHO decision awarding the Erdes tuition
reimbursement mooted the instant motion for preliminary injunction. The Court
cannot now enforce the vacated IHO order via preliminary injunction.
Pursuant to Article III of the Constitution, this Court may only adjudicate
actual, ongoing controversies. Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 546
(1975). A case becomes moot when “an event occurs while a case is pending…that
makes it impossible for the Court to grant ‘any effectual relief whatever’ to a
prevailing party.” Church of Scientology of California v. U.S., 506 U.S. 9, 12
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(1992) (citing Mills v. Green, 159 U.S. 651, 653 (1971)).
Here, after the Erdes filed a motion to enforce the IHO decision via
preliminary injunction, the DOE appealed the decision, and the SRO vacated it and
remanded for further proceedings. This reversal makes it impossible for this Court
to grant effectual relief. Put simply, there is no longer an IHO order to enforce.
While the Erdes correctly point out that a civil proceeding may be brought to
appeal an SRO reversal of an IHO decision, the facts of this case differ in at least
one significant respect from the caselaw that they cite. See B.R. v. N.Y.C. Dept. of
Education, 910 F. Supp. 2d 670, 675 (S.D.N.Y. 2012) (citing M.H. v. N.Y.C. Dept.
of Education, 685 F.3d 217 (2d Cir. 2012)) (permitting plaintiff to challenge an
SRO reversal of an IHO decision in federal court). In B.R., parties brought a civil
action only after having “completed the state administrative appeal process, which
terminated in the Department’s favor.” B.R. v. N.Y.C. Dept. of Education, 910 F.
Supp. 2d 670, 672 (S.D.N.Y. 2012) However, the SRO decision here remanded to
the IHO for a further hearing on the merits. Both parties agree that administrative
proceedings are pending in this case. Under IDEA, exhaustion of administrative
remedies is required except in a few limited circumstances, which do not apply in
this case. See 20 U.S.C. § 1415(i)(2)(A). Therefore, the administrative process here
is not exhausted as in B.R., and its application to the Erdes’ motion for preliminary
injunction does not support enforcing an IHO decision that was vacated.
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III.
The Court need not reach the merits of this motion since it is moot.
Nonetheless, in the alternative, the motion would be denied on the merits.
To justify a preliminary injunction, the movant must establish “(1) either (a)
a likelihood of success on the merits or (b) sufficiently serious questions going to
the merits to make them a fair ground for litigation and a balance of hardships
tipping decidedly in the movant's favor, and (2) irreparable harm in the absence of
the injunction.” Kelly v. Honeywell Int'l, Inc., 933 F.3d 173, 183-84 (2d Cir. 2019)
(internal citations and quotations omitted).
“A showing of irreparable harm is ‘the single most important prerequisite for
the issuance of a preliminary injunction.’” Faiveley Transp. Malmo AB v. Wabtec
Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d
227, 234 (2d Cir. 1999)). “To establish irreparable harm, a party ... must show that
there is a continuing harm which cannot be adequately redressed by final relief on
the merits and for which money damages cannot provide adequate compensation.”
Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (internal citations
omitted). Here, the Erdes seek financial compensation for a harm—the State’s
allegedly unlawful non-payment of their child’s tuition for the 2019-2020 school
year—that has already occurred. A post-trial judgment awarding the Erdes
monetary damages for the cost of tuition would clearly remedy the harm they
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allege. Accordingly, they fail to allege irreparable harm and a preliminary
injunction is not warranted. See Massanari, 295 F.3d at 214.
CONCLUSION
Plaintiffs’ motion for a preliminary injunction is DENIED for the reasons
described above.
SO ORDERED.
_/S/ Frederic Block__________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York August 24, 2021
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