UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
SUSANNE ERDE and MICHAEL ERDE, as Parents and Natural Guardians of J.E., and SUSANNE ERDE and MICHAEL ERDE, Individually,
Plaintiffs, MEMORANDUM AND ORDER -against- Case No. 21-CV-514
RICHARD CARRANZA, in his official capacity as Chancellor of the New York City Department of Education, and the NEW YORK CITY DEPARTMENT OF EDUCATION,
Defendants.
For the Plaintiff: For the Defendant: RORY J. BELLANTONI PHILIP S. FRANK Brain Injury Rights Group, Ltd. New York City Law Department 300 East 95th Street, #130 100 Church Street, Ste 2-167 New York, NY 10128 New York, NY 10007
BLOCK, Senior District Judge:
Plaintiffs Susanne Erde and Michael Erde, as parents and natural guardians
of J.E. (“Plaintiffs”), bring this action against the New York City Department of
Education (“DOE”) and DOE Chancellor Richard Carranza (collectively,
“Defendants”) pursuant to the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq. Plaintiffs appeal the decisions of State Review
Officer (“SRO”) Justyn Bates, and seek reimbursement for the costs of tuition and
related services for J.E. for the 2019–2020 school year. Plaintiffs have filed a
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motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Defendants oppose the motion and have filed a cross-motion for summary
judgment. For the following reasons, Plaintiffs’ motion is DENIED and
Defendants’ cross-motion is GRANTED.
Background
Much of the relevant statutory framework and background is set forth in the
Court’s recent decision in a related case in which Plaintiffs sought funding for the
2018–2019 school year. See Erde v. Carranza, No. 20-CV-2181, 2024 WL
4989225 (E.D.N.Y. Dec. 5, 2024) (“Erde I”). The Court assumes familiarity with
that decision. In short, the IDEA obliges states receiving federal funds to provide
children with disabilities a free appropriate public education (“FAPE”) in
conformity with an individualized education program (“IEP”). The DOE’s
Committee on Special Education (“CSE”) is tasked with creating IEPs, which must
comply with IDEA requirements to provide certain educational benefits.
If a parent believes an IEP is non-compliant, the parent may file a due
process complaint, which is adjudicated in an impartial hearing by an initial
hearing officer (“IHO”), whose decision is appealable to an SRO. A parent who
believes the DOE is failing to provide his or her child a FAPE may also unilaterally
enroll the child in a private school and seek reimbursement, which will be granted
upon a showing the proposed IEP failed to provide a FAPE, that the private
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placement was appropriate, and that equitable considerations support
reimbursement.
Additionally, the IDEA provides that while administrative and judicial
proceedings are pending, a child must remain at his or her last agreed-upon school
placement at public expense. See Ventura de Paulino v. N.Y.C. Dep’t of Educ., 959
F.3d 519, 531 (2d Cir. 2020) (citing 20 U.S.C. § 1415(j)). The DOE may, however,
dispute what constitutes the last agreed-upon placement, so the DOE need not fund
tuition until a pendency determination is issued. Id. at 532–33.
The following facts are taken from the pleadings, the parties’ Rule 56.1
statements, and certified administrative record. During the 2017–2018 school year,
Plaintiffs had unilaterally placed J.E., who is non-verbal and non-ambulatory, at
the private International Academy of Hope (“iHOPE”). An IHO decision in their
favor awarded tuition reimbursement for that year. During the following 2018–
2019 school year, Plaintiffs placed J.E. at a different school, the International
Institute for the Brain (“iBRAIN”). In Erde I, the Court denied Plaintiffs’ appeal of
an SRO decision that denied reimbursement for the 2018–2019 school year.
For the 2019–2020 school year, Plaintiffs again placed J.E. at iBRAIN and
sought reimbursement after filing a July 8, 2019 due process complaint (“DPC”),
which accused the DOE of denying J.E. a FAPE for that year by committing
multiple substantive and procedural errors in developing an IEP. See DPC,
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Certified Administrative Record (“Record”) at 1043–45, ECF No. 41-25. On
January 12, 2021, IHO Edgar De Leon determined iBRAIN was J.E.’s pendency
placement and ordered reimbursement for the then-concluded 2019–2020 school
year. See Decision of IHO De Leon, Record at 324–49, ECF No. 41-23.
Meanwhile, Plaintiffs had also filed two complaints in the U.S. District
Court for the Southern District of New York seeking equitable relief and damages
arising out of the DOE’s alleged violation of the IDEA pendency provision. See
S.D.N.Y. Complaint I, No. 19-CV-2946 (S.D.N.Y. Apr. 3, 2019), ECF No. 1
(concerning 2018–2019 pendency); S.D.N.Y. Complaint II, No. 19-CV-8401
(S.D.N.Y. Sept. 13, 2019), ECF No. 6 (concerning 2019–2020 pendency). On
January 8, 2021, Judge Katherine Polk Failla dismissed those cases with prejudice,
finding Plaintiffs’ claims foreclosed by the Second Circuit’s recent decision in
Ventura de Paulino, which concerned parents seeking reimbursement for a
pendency placement at iBRAIN. See Transcript and Oral Decision, No. 19-CV-
2925 (S.D.N.Y. Jan. 8, 2021), ECF No. 76; Record at 189–92, ECF No. 41-19.
On March 17, 2021, following the DOE’s appeal from IHO De Leon’s
decision, SRO Justyn Bates reversed that decision and remanded the matter to the
IHO. See First Decision of SRO Bates, Record at 6–16, ECF Nos. 41-1–5. SRO
Bates reasoned that the S.D.N.Y. precluded Plaintiffs from seeking reimbursement
for J.E.’s pendency placement at iBRAIN and “put to rest any argument that this
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matter was distinguishable from . . . Ventura de Paulino.” Id. at 14. On remand,
newly assigned IHO Steven Forbes determined on August 30, 2021 that the DOE
had offered J.E. a FAPE and dismissed Plaintiffs’ DPC. See Decision of IHO
Forbes, Record at 276–303, ECF Nos. 41-21–23. On November 12, 2021, SRO
Bates affirmed this decision on appeal. See Second Decision of SRO Bates, Record
at 17–44, ECF Nos. 41-5–14.
Standard of Review
“Although the parties have styled their submissions as motions for summary
judgment, ‘the procedure is in substance an appeal from an administrative
determination, not a summary judgment.’” C.U. v. N.Y.C. Dep’t of Educ., 23 F.
Supp. 3d 210, 222 (S.D.N.Y. 2014) (quoting Lillbask ex rel. Mauclaire v. Conn.
Dep’t of Educ., 397 F.3d 77, 83 n.3 (2d Cir. 2005)). “The standard of review
‘requires a more critical appraisal of the agency determination than clear-error
review but nevertheless falls well short of complete de novo review.’” C.F. v.
N.Y.C. Dep’t of Educ., 746 F.3d 68, 77 (2d Cir. 2014) (quoting M.H., 685 F.3d at
244). A federal court should not “rubber stamp” administrative decisions and
conclusions, M.W. v. N.Y.C. Dep't of Educ., 725 F.3d 131, 139 (2d Cir. 2013), but
nevertheless must be “mindful that courts lack the ‘specialized knowledge and
educational expertise’ possessed by state administrators, and therefore . . . defer to
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their well-reasoned opinions on issues of education policy.” J.D. v. N.Y.C. Dep't of
Educ., 677 F. App’x 709, 711 (2d Cir. 2017) (summary order).
“Where the IHO and SRO disagree, reviewing courts are not entitled to
adopt the conclusions of either state reviewer according to their own policy
preferences or views of the evidence; courts must defer to the reasoned conclusions
of the SRO as the final state administrative determination.” M.H., 685 F.3d at 246.
Deference “is particularly appropriate” where the state administrative review “has
been thorough and careful.” Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 754
(2d Cir. 2019) (citing M.H., 685 F.3d at 241). “However, where the SRO's
determinations are insufficiently reasoned to merit deference, the courts should
defer to the IHO's analysis.” C.F., 746 F.3d at 77 (citing M.H., 685 F.3d at 246).
Discussion
Plaintiffs make two primary arguments. First, they argue SRO Bates erred in
his first decision by retroactively applying Ventura de Paulino and reversing IHO
De Leon’s initial decision on reimbursement for J.E.’s pendency placement.
Second, Plaintiffs appeal from the decision on the merits of IHO Forbes, upheld by
SRO Bates, that the DOE offered J.E. a FAPE for the 2019–2020 school year,
arguing that there were procedural and substantive defects in the DOE’s IEP.
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Pendency Placement
Defendants argue that the doctrine of collateral estoppel precludes Plaintiffs’
from relitigating the issue of whether they were entitled to funding at iBRAIN as a
pendency placement while they challenged the IEP. Defendants argue that Judge
Failla already resolved this issue after giving Plaintiffs a full and fair opportunity
to litigate the question. The Second Circuit has held that federal law determines the
application of collateral estoppel, which applies when “(1) the identical issue was
raised in a previous proceeding; (2) the issue was actually litigated and decided in
the previous proceeding; (3) the party had a full and fair opportunity to litigate the
issue; and (4) the resolution of the issue was necessary to support a valid and final
judgment on the merits.” Interoceanica Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91
(2d Cir. 1997).
Plaintiffs argue that collateral estoppel does not apply because this case does
not involve the identical issue as the S.D.N.Y. lawsuits. Plaintiffs argue that the
instant case concerns “enforcement” of IHO De Leon’s pendency order, whereas
the earlier S.D.N.Y. lawsuits sought a pendency order as relief after their interim
application was denied.
While the particular form of relief sought may differ between these suits,
Plaintiffs are incorrect that the same issue is not at their core. To review, in
Plaintiffs’ S.D.N.Y. lawsuits before Judge Failla they alleged in their complaints
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that the IHO had wrongfully denied their request for pendency at iBRAIN. See
S.D.N.Y. Complaint I at 3–4; S.D.N.Y. Complaint II at 4. Subsequent to the filing
of these complaints, the Second Circuit issued its decision in Ventura de Paulino,
which concerned whether parents who had unilaterally moved a child to iBRAIN
were entitled to funding under the IDEA’s pendency provision on the basis that
iBRAIN was “substantially similar” to the last agreed-upon program between the
parents and school district. See Ventura de Paulino, 959 F.3d 525–25. The Second
Circuit determined the parents were not so entitled. See id. at 525.
Judge Failla then requested additional briefing on the impact of Ventura de
Paulino, and Plaintiffs moved to amend their complaints. Plaintiffs argued Ventura
de Paulino was distinguishable in that J.E. had previously been at iHOPE by
operation of law following an IHO decision, rather than by agreement, and that he
was thus wrongfully denied a pendency placement at iBRAIN. See Letter Motion,
No. 19-CV-8401 (S.D.N.Y. Aug. 8, 2020), ECF No. 73. Judge Failla, dismissing
the complaint with prejudice, squarely rejected these arguments, finding Plaintiffs’
“efforts to distinguish the Erde cases from Ventura de Paulino fail and that Ventura
de Paulino is dispositive[.]” Transcript and Oral Decision at 27:22–24. Judge Failla
also rejected the argument that the fact iHOPE became J.E.’s pendency placement
by operation of law distinguished the case. Id. at 28:1–9 (citing Neske v. N.Y.C.
Dep’t of Educ., 824 Fed. App’x 81 (2d Cir. 2020) (summary order)).
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Thus, Judge Failla addressed the identical issue raised by Plaintiffs: whether
they are entitled. to public funding of tuition at iBRAIN for the 2019–2020 school
year pursuant to the IDEA’s pendency provision. Two issues are identical for
purposes of the application of collateral estoppel when they involve the application
of the same legal standard to the same facts. See Matusick v. Erie Cnty. Water
Auth., 757 F.3d 31, 48 (2d Cir. 2014) (citing Overseas Motors, Inc. v. Import
Motors Ltd., 375 F. Supp. 499, 518 n.66a (D. Mich. 1974)). Such is the case here,
where the issue in both the prior action and instant case is the status of iBRAIN as
a pendency placement under 20 U.S.C. § 1415, and Plaintiffs’ corresponding
entitlement to funding. Judge Failla’s resolution of this identical issue—which was
the basis for her dismissal of the prior S.D.N.Y. suits—estops Plaintiffs from
relitigating it here.
Alleged Procedural and Substantive Defects
Plaintiffs also ask the Court to overturn the decisions of IHO Forbes and
SRO Bates, which found the DOE had offered J.E. a FAPE for the 2019–2020
school year. Plaintiffs argue SRO Bates wrongly rejected their argument that the
IEP was developed in a procedurally defective manner because the school
physician was not present during the CSE meeting, but instead participated by
phone. This same argument was considered and rejected by the SRO in Erde I, see
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2024 WL 498225, at *4–5, and the Court upholds the SRO’s rejection of it here for
the same reasons.
Both IHO Forbes and SRO Bates found the physician’s participation by
phone did not result in denial of a FAPE. See Decision of IHO Forbes, Record at
296 (finding physician’s participation by phone “more than sufficient” and
suggesting refusal to participate on this basis “reveals both a lack of good faith . . .
[and] an arbitrary irrational adherence to form over substance”); Second Decision
of SRO Bates, Record at 31 (finding physician’s participation by phone sufficient
absent a specific contrary reason); see also S.A. ex rel. M.A.K. v. N.Y.C. Dep't of
Educ., 12-CV-435, 2014 WL 1311761, at *9 (E.D.N.Y. Mar. 30, 2014) (collecting
cases in which Second Circuit courts “have repeatedly found no IDEA violation
where a CSE member participated telephonically in an IEP meeting”). The Court
defers to these well-reasoned and thorough analyses.
Plaintiffs also argue that the SRO erroneously rejected their contentions that
the substance of the DOE’s IEP was not appropriately tailored in that it did not
recommend 1:1 nursing services, grouped J.E. with students with dissimilar
disabilities, and reduced the duration of the sessions in which he received related
services. The SRO Bates’s decision on these points was “thorough and careful” and
is thus entitled to deference. Mr. P. v. W. Hartford Bd. of Educ., 885 F.3d 735, 754
(2d Cir. 2019) (citing M.H., 685 F.3d at 241).
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SRO Bates explained that Plaintiffs did not raise an allegation concerning
1:1 nursing services in the DPC, and thus the issue was outside the scope of
review. See Second Decision of SRO Bates, Record at 27. Plaintiffs had argued
that an allegation concerning 1:1 nursing was implicit in their allegation that the
IEP reduced J.E.’s related services, but SRO Bates rejected this contention,
explaining that “an allegation referencing only related services is over-broad to
incorporate [this] much more specific claim[.]” Id. The Court defers to the SRO’s
soundly reasoned decision on this waiver rule, which undergirds the resolution
process. See Erde I, 2024 WL 4989225, at *3 (citing 20 U.S.C. 1415(f)(1)(B) and
R.E. v. N.Y.C. Dep't of Educ., 694 F.3d 167, 187 n.4 (2d Cir. 2012)).
SRO Bates likewise evinced careful and thorough reasoning in rejecting
Plaintiffs’ contention that the IEP’s potential grouping of J.E. with students with
dissimilar disabilities—namely, autism spectrum order—constituted the denial of a
FAPE. SRO Bates reviewed in detail the testimony of the principal of the school
proposed in the IEP, and of J.E.’s father, and concluded that the evidence was
sufficient to support the school’s ability to implement the IEP, and that to hold
otherwise would “fall too closely to an impermissible parental veto.” Second
Decision of SRO Bates, Record at 28; see also Thomas v. Porter, No. 21-CV-6713,
2023 WL 1966207, at *16 (S.D.N.Y. Feb. 13, 2023) (citing R.E., 694 F.3d at 187,
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195) (“[G]rouping evidence is the kind of speculative evidence that is
impermissible.”).
Lastly, both IHO Forbes and SRO Bates carefully considered and explained
why they rejected Plaintiffs’ argument that the IEP’s recommendation that J.E.
receive services in 40-minute sessions, rather than 60-minute ones, deprived J.E. of
a FAPE. See Decision of IHO Forbes, Record at 299 (reviewing the evidence and
finding Plaintiffs could not articulate any adverse effect of this change); Second
Decision of SRO Bates, Record at 41 (affirming IHO Forbes’s conclusion); see
also Erde I, 2024 WL 4989225, at *4 (upholding decisions of IHO and SRO to
reject same argument with respect to 2019–2019 IEP). On this, as with the prior,
substantive defects with the IAP alleged by Plaintiffs, deference is appropriate in
light of the thoughtful analysis set forth in support of the decisions of the IHO and
SRO. See R.E., 694 F.3d at 184 (citing Walczak v. Fla. Union Free Sch. Dist., 142
F.3d 119, 129 (2d Cir. 1998)).
Because the Court upholds the SRO’s decision that the D.O.E. did not deny
J.E. a FAPE, it need not consider the appropriateness of iBRAIN or the balance of
equities.
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Conclusion
For the foregoing reasons, Plaintiffs’ motion for summary judgment is
denied, and Defendants’ cross-motion for summary judgment is granted.
SO ORDERED.
_/S/ Frederic Block__________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York December 19, 2024
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