K.M. v. Adams

• Court: Court of Appeals for the Second Circuit
• Decided: August 31, 2022
• Docket: 20-4128
• Status: Unpublished

Opinion

20-4128 K.M. v. Adams

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of August, two thousand twenty-two.

PRESENT: DENNY CHIN, RICHARD J. SULLIVAN, STEVEN J. MENASHI, Circuit Judges. _____________________________________

K.M., individually and on behalf of M.M. and S.M. and all others similarly situated, C.N., individually and on behalf of V.N. and all others similarly situated, J.J., individually and on behalf of Z.J. and all others similarly situated,

Plaintiffs-Appellants,

J.T., individually and on behalf of D.T. and all others similarly situated,

Plaintiff,

v. No. 20-4128 ERIC ADAMS, in his official capacity as Mayor of New York City, DAVID C. BANKS, in his official capacity as Chancellor of the New York City Department of Education, NEW YORK CITY DEPARTMENT OF EDUCATION, NEW YORK STATE DEPARTMENT OF EDUCATION, SCHOOL DISTRICTS IN THE UNITED STATES, STATE DEPARTMENTS OF EDUCATION IN THE UNITED STATES, CONNECTICUT REGIONAL SCHOOL DISTRICT NO. 10 (HARWINTON & BURLINGTON), CLAYTON COUNTY PUBLIC SCHOOLS, COBB COUNTY SCHOOL DISTRICT, DEKALB COUNTY SCHOOL DISTRICT, MARIETTA CITY SCHOOLS, CITY OF BRISTOL SCHOOL DISTRICT, PENTUCKET REGIONAL HIGH SCHOOL, TOWN OF BRANFORD SCHOOL DISTRICT, TOWN OF CLINTON AND CLINTON BOARD OF EDUCATION, POMFRET CT SCHOOL DISTRICT, TOWN OF PLAINVILLE AND PLAINVILLE BOARD OF EDUCATION, SEYMOUR BOARD OF EDUCATION, TOWN OF WATERTOWN AND WATERTOWN BOARD OF EDUCATION, TOWN OF WINDHAM AND WINDHAM BOARD OF EDUCATION, TOWN OF GROTON AND GROTON BOARD OF EDUCATION, TOWN OF WALLINGFORD AND WALLINGFORD BOARD OF EDUCATION, TOWN OF PLYMOUTH AND PLYMOUTH BOARD OF EDUCATION, MARTHA'S VINEYARD HIGH SCHOOL, PENNSYLVANIA DEPARTMENT OF EDUCATION, ALPINE UNION SCHOOL DISTRICT, BONSALL UNION SCHOOL DISTRICT, BORREGO SPRINGS UNIFIED SCHOOL DISTRICT, CARDIFF ELEMENTARY SCHOOL DISTRICT, CARLSBAD UNIFIED

2 SCHOOL DISTRICT, CHULA VISTA ELEMENTARY SCHOOL DISTRICT, CORONADO UNIFIED SCHOOL DISTRICT, DEHESA SCHOOL DISTRICT, DEL MAR UNION SCHOOL DISTRICT, ENCINITAS UNION SCHOOL DISTRICT, ESCONDIDO UNION ELEMENTARY SCHOOL DISTRICT, ESCONDIDO UNION HIGH SCHOOL DISTRICT, FALLBROOK UNION ELEMENTARY SCHOOL DISTRICT, FALLBROOK HIGH SCHOOL UNION DISTRICT, GROSSMONT UNION HIGH SCHOOL DISTRICT, JAMUL- DULZURA UNION SCHOOL DISTRICT, JULIAN UNION SCHOOL DISTRICT, JULIAN UNION HIGH SCHOOL DISTRICT, LA MESA-SPRING VALLEY SCHOOL DISTRICT, LAKESIDE JOINT SCHOOL DISTRICT, LEMON GROVE SCHOOL DISTRICT, MCCABE UNION SCHOOL DISTRICT, MOUNTAIN EMPIRE UNIFIED SCHOOL DISTRICT, RAMONA UNIFIED SCHOOL DISTRICT, RANCHO SANTA FE ELEMENTARY SCHOOL DISTRICT, SAN DIEGO COUNTY OFFICE OF EDUCATION, SAN DIEGUITO UNION HIGH SCHOOL DISTRICT, SAN MARCOS UNIFIED SCHOOL DISTRICT, SAN PASQUAL UNION ELEMENTARY SCHOOL DISTRICT, SAN PASQUAL VALLEY UNIFIED SCHOOL DISTRICT, SANTEE SCHOOL DISTRICT, SOLANA BEACH ELEMENTARY SCHOOL DISTRICT, SPENCER VALLEY ELEMENTARY SCHOOL DISTRICT, SWEETWATER UNION HIGH SCHOOL DISTRICT, VALLECITOS ELEMENTARY SCHOOL DISTRICT, VALLEY CENTER-PAUMA UNIFIED SCHOOL DISTRICT, WARNER UNIFIED SCHOOL DISTRICT, CHERRY HILL PUBLIC SCHOOLS, MIDDLETOWN TOWNSHIP PUBLIC SCHOOLS, WEST ORANGE

3 PUBLIC SCHOOLS, READINGTON TOWNSHIP PUBLIC SCHOOLS, CERTAIN SCHOOL DISTRICTS LOCATED IN THE STATE OF VIRGINIA, CERTAIN SCHOOL DISTRICTS LOCATED IN THE STATE OF CALIFORNIA, TOWN OF STRATFORD BOARD OF EDUCATION, CITY OF NORWALK BOARD OF EDUCATION, CITY OF STAMFORD BOARD OF EDUCATION, CITY OF BRIDGEPORT BOARD OF EDUCATION, OMAHA PUBLIC SCHOOL DISTRICT, AUSTIN INDEPENDENT SCHOOL DISTRICT, ATLANTA INDEPENDENT SCHOOL SYSTEM, FULTON COUNTY SCHOOL DISTRICT, MINNESOTA STATE DEPARTMENT OF EDUCATION, STATE OF WASHINGTON, WASHINGTON STATE SCHOOL FOR THE BLIND, WASHINGTON STATE SCHOOL FOR THE DEAF, SOUTH CAROLINA DEPARTMENT OF EDUCATION,

Defendants-Appellees. * _____________________________________ For Plaintiffs-Appellants: RORY J. BELLANTONI (Peter Glenn Albert, on the brief), Brain Injury Rights Group, Ltd., New York, NY.

For Defendants-Appellees Eric Adams, DIANA LAWLESS, Assistant David C. Banks, and New York City Corporation Counsel (Georgia M. Department of Education: Pestana, Acting Corporation Counsel, Richard Dearing, Devin Slack, on the brief), City of New York, New York, NY.

* The Clerk of Court is respectfully directed to amend the caption as reflected above. Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mayor Adams and Chancellor Banks are automatically substituted as Defendants-Appellees for the former Mayor, Bill de Blasio, and the former Chancellor, Richard Carranza, respectively.

4 For Defendants-Appellees School JOHANNA ZELMAN, FordHarrison Districts in the United States: LLP, Hartford, CT (Michael J. Scarinci, Deputy Attorney General, Pennsylvania Office of Attorney General, Harrisburg, PA; Eric L. Harrison, Methfessel & Werbel, PC, Edison, NY; Curtis A. Johnson, Bond, Schoeneck & King, PLLC, Rochester, NY; Nicholas F. Miller, Baird Holm LLP, Omaha, NE; Christopher A. Long, Louis F. Eckert, Litchfield Cavo LLP, New York, NY; Ryan P. Driscoll, Berchem Moses, Milford, CT; Beth Kaufman, Schoeman Updike Kaufman & Gerber LLP, New York, NY; Lewis R. Silverman, Caroline B. Lineen, Silverman & Associates, White Plains, NY; Adam I. Kleinberg, Sokoloff Stern LLP, Carle Place, NY; Darren Cunningham, Office of the Attorney General, State of Connecticut, Hartford, CT; Kathleen D. Monnes, Joseph K. Scully, Daniel J. Raccuia, Day Pitney LLP, Hartford, CT; Bryce L. Friedman, Simpson Thacher & Bartlett LLP, New York, NY; Jill M. O’Toole, Shipman & Goodwin LLP, New York, NY; Eric A. Mentzer, Senior Counsel, R. July Simpson, Assistant Attorney General, Attorney General of Washington, Olympia, WA; Barbara J. Myrick, Office of the

5 General Counsel, School Board of Broward County, Florida, Fort Lauderdale, FL, on the brief).

For Defendant-Appellee New York MATTHEW GRIECO, Assistant State Department of Education: Solicitor General (Barbara D. Underwood, Solicitor General, Anisha S. Dasgupta, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY.

For Defendant-Appellee Austin JONATHAN GRIFFIN BRUSH (Amy Independent School District: Demmler, on the brief), Rogers, Morris & Grover, L.L.P., Houston, TX.

For Amici Curiae New York State Jay Worona, New York State School Boards Association, Inc. and School Boards Association, Inc., National School Boards Association, in Latham, NY; Francisco M. Negrón, support of Defendants-Appellees: Jr., National School Boards Association, Alexandria, VA.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Colleen McMahon, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the appeal from the district court’s denial of

a preliminary injunction is DISMISSED AS MOOT; the judgment of the district

court as to Defendants-Appellees Mayor Eric Adams, Chancellor David C. Banks,

6 and the New York City Department of Education is AFFIRMED in all other

respects; and the appeal as to all other Defendants-Appellees is DISMISSED.

Plaintiffs-Appellants – school-aged children suffering from various

disabilities, and their parents and guardians – appeal from the district court’s

judgment denying their motion for a preliminary injunction and dismissing their

claims under the Individuals with Disabilities Education Act (the “IDEA”),

20 U.S.C. § 1400 et seq., and the Racketeer Influenced and Corrupt Organizations

Act (“RICO”), 18 U.S.C. §§ 1961–1968, against school districts across the nation

that shut down or shifted to remote schooling during the initial months of the

COVID-19 pandemic.

More specifically, Plaintiffs-Appellants include 104 parents or guardians

(the “Parents”) of students (the “Students”) who are classified as “child[ren] with

a disability” under the IDEA, 20 U.S.C. § 1401(3), and were enrolled between

March and July of 2020 in public schools either in New York City (the “NYC

Plaintiffs”) or in one of sixty-five other school districts across New York and

fourteen other States. On behalf of putative nationwide classes of all such

students and all parents or guardians of such students, the Students and Parents

sued (or purported to sue) defendants including the Mayor of New York City in

7 his official capacity, the New York City Department of Education (the

“NYCDOE”), and the Chancellor of the NYCDOE in his official capacity

(collectively, the “NYC Defendants”), as well as all 13,821 public school districts

in the United States and the state departments of education of all fifty States, the

District of Columbia, and Puerto Rico (collectively, the “Non-NYC Defendants”).

Alleging principally that the shift from in-person to remote instruction constituted

a per se deprivation of the “free appropriate public education” guaranteed to

disabled students under the IDEA, 20 U.S.C. § 1412(a)(1)(A), the Students and

Parents brought claims – as relevant to this appeal – under the IDEA and RICO. 1

Now before us on appeal are the Students and Parents’ arguments that the district

court erred in (1) dismissing their IDEA claims against the NYC Defendants for

1 In their initial complaint, the Students and Parents also asserted claims under 42 U.S.C. § 1983; the Federal Rehabilitation Act, 29 U.S.C. § 794 et seq.; the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; and an assortment of state-law constitutional and statutory provisions. At oral argument, however, counsel for the Students and Parents conceded that they are no longer “pursuing any of the claims in th[is] case . . . other than the IDEA claim against the [NYC] Defendants” and “the RICO [claim].” Oral Argument at 1:43–3:23. “[T]o the extent that certain statements in [the Students and Parents’] briefs here or in the district court are to the contrary, [they] are nevertheless bound by concessions made by their counsel at oral argument.” Dorce v. City of New York, 2 F.4th 82, 102 (2d Cir. 2021).

8 failure to exhaust administrative remedies, (2) denying them leave to amend their

civil RICO claims, and (3) denying their motion for a preliminary injunction. 2

We review de novo the district court’s dismissal of an IDEA claim for failure

to exhaust administrative remedies. Ventura de Paulino v. N.Y.C. Dep’t of Educ.,

959 F.3d 519, 529–31 (2d Cir. 2020). “[W]e apply a deferential, ‘abuse of

discretion’ standard of review to the district court’s informed” exercise of its

“sound discretion . . . to grant or deny leave to amend.” Iqbal v. Ashcroft, 574 F.3d

820, 822 (2d Cir. 2009) (citation omitted). Finally, we review the district court’s

denial of a preliminary injunction for abuse of discretion. N.Y. Progress & Prot.

PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013).

First, the Students and Parents argue that the district court erred in

dismissing their IDEA claims for failure to exhaust available administrative

remedies. To exhaust their administrative remedies under the IDEA, the

Students and Parents needed to (1) seek relief from an Impartial Hearing Officer

2 While the Students and Parents’ briefs framed their arguments more broadly, the scope of their appeal has been “limited” significantly “by concessions made by their counsel at oral argument.” Dorce, 2 F.4th at 102. Based on the Students and Parents’ concession that “on this appeal, [the Court] do[es]n’t need to worry about any of the Appellees other than the [NYC] Defendants,” Oral Argument at 2:10–2:22, we dismiss their appeal as to the Non-NYC Defendants. Likewise, whereas the Students and Parents’ briefs had challenged the merits of the district court’s dismissal of their civil RICO claim, they are now “bound” by their counsel’s “clarifi[cation],” Dorce, 2 F.4th at 102, that they are “not appealing the substance of th[at] decision” – “just the ‘with prejudice’ part,” Oral Argument at 2:47–3:26.

9 (“IHO”) of the NYCDOE and, if the IHO denied such relief, then (2) seek review

by a State Review Officer (“SRO”) of the New York State Education Department

(the “NYSED”). See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379–80 (2d Cir.

2003) (citing 20 U.S.C. § 1415(f), (g), (i)(2)(A); N.Y. Educ. Law § 4404(1), (2)).

The Students and Parents do not dispute that they failed to exhaust their

administrative remedies, but instead argue that it would have been futile to do so.

They offer two alternative theories of futility: (1) that seeking relief from an IHO

and SRO would have been futile in light of “the delay caused by the COVID

closures, compounded by the delays caused generally by [New York] City and the

administrative processes”; and (2) that “[t]he result [they] were seeking could not

have been ordered by an IHO or an SRO,” as such officers “lack the power to

reopen the public schools.” Students and Parents Br. at 43–44. But while it is

true that “the exhaustion requirement does not apply in situations in which

exhaustion would be futile,” Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d

198, 205 (2d Cir. 2007) (internal quotation marks omitted), neither of the Students

and Parents’ two theories of futility avails them.

The first fails on the merits. To establish futility on account of delay, the

Students and Parents must show that the relevant “administrative bodies

10 persistently fail to render expeditious decisions as to a child’s educational

placement.” Frutiger v. Hamilton Cent. Sch. Dist., 928 F.2d 68, 74 (2d Cir. 1991)

(emphasis added). But beyond vague and conclusory assertions that there was

“delay caused by the COVID closures” or “generally by [New York] City and the

administrative processes,” Students and Parents Br. at 44, the Students and Parents

have failed to show that any such delays actually existed – much less that they

were “persistent[],” Frutiger, 928 F.2d at 74. In their reply brief, the Students and

Parents attempt to remedy this failure by pointing out that the plaintiffs in a

separate case have made more specific allegations of systemic delay in NYCDOE’s

and NYSED’s administrative processes. See Complaint, J.S.M. v. N.Y.C. Dep’t of

Educ., No. 20-cv-705 (EK) (E.D.N.Y. Feb. 7, 2020), ECF No. 1. But the J.S.M.

plaintiffs’ specific allegations of delay will not compensate for these plaintiffs’

failure to offer any such allegations, as we may not “take judicial notice of a

document filed in another court . . . for the truth of the matters asserted” therein.

Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)

(internal quotation marks omitted).

The Students and Parents’ second theory of futility – that IHOs and SROs

would lack the power to reopen the public schools – is not properly preserved for

11 our review. Because that argument was neither passed upon by the district court

below nor even suggested to that court, we deem it waived. See Booking v. Gen.

Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001) (“In general, ‘a federal appellate

court does not consider an issue not passed upon below.’” (quoting Singleton v.

Wulff, 428 U.S. 106, 120 (1976))).

Because the Students and Parents cannot point to any non-waived basis on

which to excuse their failure to exhaust their administrative remedies as required

by the IDEA, the district court properly concluded that it lacked subject-matter

jurisdiction over Students and Parents’ IDEA claims. See Ventura de Paulino, 959

F.3d at 530 (“[U]nless an exception applies, the exhaustion of administrative

remedies under the IDEA is a ‘jurisdictional prerequisite’ of the statute and . . . a

‘plaintiff’s failure to exhaust deprives a court of subject[-]matter jurisdiction’ over

any IDEA claims.” (first quoting Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ.,

297 F.3d 195, 199 (2d Cir. 2002); then quoting Polera v. Bd. of Educ., 288 F.3d 478,

483 (2d Cir. 2002)) (alteration omitted)). 3

3 To be sure, we “have questioned . . . the supposed jurisdictional nature of the [IDEA’s] exhaustion requirement” in the dicta of some of our “recent[]” decisions. Ventura de Paulino, 959 F.3d at 530 (collecting cases). But unless and until Murphy and Polera are “overruled either by an en banc panel of our Court or by the Supreme Court,” we are “bound” by them. Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014) (citation omitted).

12 Second, the Students and Parents argue that the district court “abused its

discretion by denying [their] motion to amend the[ir] civil RICO claim.” Students

and Parents Br. at 44 (capitalization standardized). This argument

mischaracterizes the record. It was Judge McMahon – not the Students and

Parents – who first (constructively) amended their complaint to include RICO

claims after their filing of a “RICO Case Statement” pursuant to her Individual

Rules. When the Students and Parents subsequently moved for leave to amend

their complaint to “include their [c]ivil RICO claims,” Dist. Ct. Doc. No. 133 at 2,

Judge McMahon essentially denied their request as moot, explaining that she had

already treated their RICO Case Statement as “automatically amend[ing] their

complaint to include a RICO count,” Sp. App’x at 31 (emphasis added). But after

Judge McMahon constructively added the RICO claim to the Students and Parents’

complaint, they never moved to further amend the claim itself with any new

allegations. Indeed, they tacitly concede as much in their reply brief, offering

no response to the NYC Defendants’ observation that “the district court granted

[the Students and Parents] all the relief they sought in terms of amendment.”

NYC Defendants Br. at 40. We therefore reject the Students and Parents’

“contention that the [d]istrict [c]ourt abused its discretion in not permitting an

13 amendment that was never requested.” Horoshko v. Citibank, N.A., 373 F.3d 248,

249–50 (2d Cir. 2004).

Third, and finally, the Students and Parents challenge the district court’s

denial of the NYC Plaintiffs’ motion for a preliminary injunction against the NYC

Defendants, pursuant to the IDEA’s so-called “pendency” or “stay-put” provision,

20 U.S.C. § 1415(j). But because we have already affirmed the dismissal of their

underlying IDEA claims, this portion of their appeal is now moot. See, e.g., Pierce

v. Woldenberg, 498 F. App’x 96, 98 (2d Cir. 2012) (“[A]s the merits have already been

decided against him, [the plaintiff-appellant’s] appeal from the denial of his

motion for preliminary relief is moot.” (citing Ruby v. Pan Am. World Airways, Inc.,

360 F.2d 691, 691–92 (2d Cir. 1966))). Indeed, the Students and Parents conceded

as much at oral argument, where they agreed that if we “affirm the dismissal [of

the IDEA claim] on the basis of exhaustion,” we “don’t even need to get to the

issue of [the preliminary] injunction.” Oral Argument at 1:01:55–1:02:24.

We have considered the Students and Parents’ remaining arguments and

find them to be meritless. Accordingly, we DISMISS their appeal as to the

Non-NYC Defendants, DISMISS AS MOOT their appeal from the denial of a

14 preliminary injunction, and otherwise AFFIRM the judgment of the district court

to the extent that it dismissed the claims against the NYC defendants.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court