Roe v. Healey

78 F.4th 11

• Court: Court of Appeals for the First Circuit
• Decided: August 14, 2023
• Docket: 22-1740
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1740

NANCY ROE, as parent and natural guardian of A.R., and individually; AMY MARANVILLE, as parent and natural guardian of P.M., and individually; MARIA POPOVA, as parent and natural guardian of S.P., and individually,

Plaintiffs, Appellants,

v.

MAURA TRACY HEALEY, in her official capacity as Governor; MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION; BROOKLINE PUBLIC SCHOOLS; SOMERVILLE PUBLIC SCHOOLS; WELLESLEY PUBLIC SCHOOLS; JEFFREY C. RILEY, in his official capacity as Commissioner of Education; DR. LINUS J. GUILLORY, JR., in his official capacity as Superintendent of Brookline Public Schools; MARY E. SKIPPER, in her official capacity as Superintendent of Somerville Public Schools; DR. DAVID LUSSIER, in his official capacity as Superintendent of Wellesley Public Schools,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Kayatta, Selya, and Howard, Circuit Judges.

Rory J. Bellantoni, with whom Brain Injury Rights Group, Ltd. was on brief, for appellants. Cassandra Bolaños, Assistant Attorney General, with whom Andrea Joy Campbell, Attorney General of Massachusetts, was on brief, for appellees Maura Tracy Healey, Massachusetts Department of Elementary and Secondary Education, and Jeffrey C. Riley. Joshua R. Coleman, with whom Murphy, Lamere & Murphy, P.C., was on brief, for appellees Somerville Public Schools and Mary E. Skipper. John M. Simon and Stoneman, Chandler & Miller, LLP on brief for appellees Brookline Public Schools and Dr. Linus J. Guillory, Jr. Adam Simms and Pierce Davis & Perritano LLP on brief for appellees Wellesley Public Schools and Dr. David Lussier. Francisco M. Negrón, Jr., John Foskett, and Valerio, Dominello & Hillman LLC, on brief for amici curiae National School Boards Association, Maine School Boards Association, Massachusetts Association of School Committees, and Rhode Island Association of School Committees.

August 14, 2023 KAYATTA, Circuit Judge. Three children with

disabilities and their parents sued the Governor of Massachusetts,

the Commissioner of Schools for Massachusetts, the Massachusetts

Department of Elementary and Secondary Education (DESE), and

several school districts and their superintendents on behalf of a

putative class, over the closure of in-person education due to the

COVID-19 pandemic. Plaintiffs claim that the closure deprived the

children of the free appropriate public education to which they

are entitled, and deprived the parents of their right to

participate in their children's education. They ask for various

forms of compensatory and prospective relief. We conclude that

none of their claims are cognizable in federal court at this time.

Our reasoning follows.

I.

A.

We begin by providing some background on the federal

legal landscape surrounding public education of children with

disabilities. The Individuals with Disabilities Education Act

(IDEA) "provides federal funds to assist states in educating

children with disabilities 'and conditions such funding upon a

State's compliance with extensive goals and procedures.'"

Parent/Professional Advocacy League v. City of Springfield, 934

F.3d 13, 19 (1st Cir. 2019) (quoting Arlington Cent. Sch. Dist.

Bd. of Educ. v. Murphy, 548 U.S. 291, 295 (2006)). To receive

- 3 - such funding, states must agree to guarantee to all children with

disabilities a free and appropriate public education (commonly

referred to as a FAPE). 20 U.S.C. §§ 1400(d)(1)(A), 1412(a)(1)(A).

A FAPE encompasses both "special education and related services."

Id. § 1401(9). The delivery of a FAPE is primarily accomplished

through the promulgation of individualized education programs

(IEPs). Id. § 1414(d). A student's IEP is designed by an IEP

team, which includes parents, teachers, and a representative of

the local educational agency. Id. § 1414(d)(1)(B). The IDEA

specifies the process for identifying qualified students and

creating IEPs for those students. Id. § 1414(a)–(d).

The IDEA also requires states to establish certain

procedural safeguards, which ensure that students and parents

receive the rights guaranteed under the IDEA. Id. §§ 1412(a)(6),

1415. These procedures must include opportunities for parents to

participate as part of the IEP team, written notice to parents

when an educational agency proposes changes to the IEP, and

procedures for complaints to be filed and due process hearings to

take place. Id. § 1415(b). Under the IDEA's so-called "stay put"

provision, a student must remain in his or her current placement

pending resolution of administrative or judicial proceedings under

the IDEA. Id. § 1415(j). Parents must exhaust their state-

provided remedies before filing a lawsuit in federal court alleging

a violation of the IDEA. Id. § 1415(i)(2)(A). Parents must also

- 4 - exhaust their administrative remedies before filing a lawsuit

under other statutes that protect the rights of children with

disabilities if the relief sought is available under the IDEA.

Id. § 1415(l).

In Massachusetts, the DESE is responsible for overseeing

local education authorities and ensuring compliance with the IDEA.

The local education authorities directly responsible for the

delivery of a FAPE are the school districts. Parents' procedural

rights are protected through processes enumerated in 603 Mass.

Code Regs. § 28.08. Parents may file a formal complaint and seek

a due process hearing before the Bureau of Special Education

Appeals (BSEA). Id. § 28.08(3). The final decision of a BSEA

hearing officer is subject to judicial review. Id. § 28.08(6).

Certain remedies are available to redress violations of

the IDEA. Courts and hearing officers may award relief including

compensatory education and reimbursement of educational expenses,

both of which are considered equitable remedies under the IDEA.

See Pihl v. Mass. Dep't of Educ., 9 F.3d 184, 188–89 (1st Cir.

1993); Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 19 (1st Cir.

2006). Compensatory education consists of "future special

education and related services to ensure or remedy a past denial

of a FAPE." Doucette v. Georgetown Pub. Schs., 936 F.3d 16, 32

(1st Cir. 2019). Reimbursement of educational expenses is limited

to money spent by parents "for education-related expenditures that

- 5 - the state ought to have borne." Id. at 32. Such reimbursements

are distinct from "damages." Sch. Comm. of Burlington v. Dep't of

Educ., 471 U.S. 359, 370–71 (1985); Doucette, 936 F.3d at 32. In

contrast, tort-like general damages are not available under the

IDEA. See Luna Perez v. Sturgis Pub. Schs., 143 S. Ct. 859, 864

(2023); Diaz-Fonseca, 451 F.3d at 19.

B.

1.

We turn now to the background of this particular lawsuit.

In March 2020, COVID-19 upended nearly every aspect of life,

including education. Schools across the country shuttered their

doors and substituted virtual instruction for in-person learning.

Massachusetts schools were no different. Governor Baker declared

a state of emergency due to COVID-19 on March 10, 2020. He then

ordered all public schools to close for in-person education on

March 15, 2020. Subsequent orders extended the statewide school

closures through the end of the 2019–2020 school year. While

schools were physically closed, students attended school from

home, receiving virtual instruction and services.

During the 2020–2021 school year, Massachusetts school

districts offered a variety of remote and hybrid learning models,

with hybrid and in-person options becoming available as the year

went on. By May 2021, all public schools in the Commonwealth had

returned to in-person instruction. On May 27,2021, the DESE

- 6 - commissioner announced that for the 2021–2022 school year, schools

would not "be able to offer remote learning as a standard model."

The next day, on May 28, 2021, Governor Baker ended the state of

emergency pursuant to which he had issued emergency COVID-19

orders.

2.

Parent plaintiffs Nancy Roe, Maria Popova, and Amy

Maranville all have children who qualified for services under the

IDEA. Each child had an IEP that outlined specific services and

goals to meet the child's particular needs. Plaintiff A.R. has an

emotional impairment and requires vocational skills consultations,

academic support consultations, social-emotional support

consultations, and direct academic support as part of her

education.1 Plaintiff P.M. has autism and requires direct, special

academic instruction, speech-language therapy, and social skills

services as part of his education.2 Plaintiff S.P. has a health

impairment and requires direct accommodations and special academic

instruction as part of his education.3 Although each student

plaintiff's IEP specified the services the student must receive,

1 A.R. graduated from Brookline Public Schools in June 2022. 2 P.M. withdrew from Somerville Public Schools on or about August 12, 2022, after the parties had briefed the motion to dismiss below. 3 S.P. graduated from Wellesley Public Schools in June 2021.

- 7 - no IEP addressed whether those services must be provided in person

or whether they could be provided remotely (even though at least

one IEP for each student was created during the pandemic).

Plaintiffs allege, however, that the students "necessitate in-

person services including occupational therapy, speech therapy,

social work services, and resource room services."

The complaint further alleges that each plaintiff

received "virtual instruction and services" during the later

months of the 2019–2020 school year, and for some part of the 2020–

2021 school year. A.R. "attended school at home with virtual

instruction and services until March of 2021," when she was able

to access a hybrid option; P.M. attended school at home until April

2021, when he was able to access a hybrid option; and S.P. attended

school at home until October 2020, when he was able to access a

hybrid option. The complaint does not allege that any student

plaintiff was still attending school at home when the suit was

filed in October 2021.

3.

Plaintiffs assert that when Governor Baker,4 the DESE,

and its commissioner (the state defendants), along with the

Brookline, Somerville, and Wellesley Public Schools and their

superintendents (the school defendants) switched schools to remote

4 Governor Healey has since been substituted as a defendant pursuant to Federal Rule of Appellate Procedure 43(c)(2).

- 8 - instruction in response to the COVID-19 pandemic, they violated

plaintiffs' rights under the IDEA. In particular, plaintiffs

allege that the institution of remote learning "altered [student

plaintiffs'] IEP[s] for the 2019-2020 school year to complete

virtual instruction and services without any prior written notice

and/or participation of parents." They claim that these

alterations were procedurally defective because they occurred

without notice and lasted too long, and because school defendants

failed to ensure that parents were included as members of IEP teams

and failed to reconvene IEP team meetings. As a result, the

complaint states, defendants "[f]ailed to ensure that [student

plaintiffs] could access a free and appropriate public education

on the same level as [their] non-disabled peers." This allegedly

harmed student plaintiffs, who suffered "regressions in skills and

loss of competencies regarding the goals and objectives outlined

in their IEPs." State defendants, plaintiffs claim, failed to

adequately supervise school defendants as required under the IDEA.

The complaint also asserts that defendants violated Massachusetts'

Special Education Regulations, 603 Mass. Code Regs. §§ 28.00 et

seq., for the same reasons.

The complaint further alleges that defendants illegally

discriminated against plaintiffs on the basis of disability in

violation of section 504 of the Rehabilitation Act, the Americans

with Disabilities Act (ADA), and both the substantive due process

- 9 - and equal protection guarantees of the Fourteenth Amendment (as

enforced via 42 U.S.C. § 1983). Finally, in what may be fairly

described as zealous overreach, it alleges that defendants acted

as an enterprise and committed mail and wire fraud in violation of

the Racketeer Influenced and Corrupt Organizations Act (RICO) by

falsely assuring the United States Department of Education (DOE)

that they were complying with the IDEA, and by receiving IDEA funds

when they were violating the statute.5

Plaintiffs ask for a smorgasbord of relief to redress

the many violations they recount in their complaint. First, they

want the court to declare that the students' proper educational

placement is in-person learning and to enjoin defendants from

changing their placement for more than ten days (i.e., from closing

schools again). Next, plaintiffs request retrospective

compensatory relief, including a special master to evaluate each

child and recommend compensatory education and what they call

"pendency funds."6 Plaintiffs also seek declaratory judgments that

5 A district court in the Southern District of New York described similar RICO claims as "reek[ing] of bad faith and contrivance." J.T. v. de Blasio, 500 F. Supp. 3d 137, 172 (S.D.N.Y. 2020). 6 It is not clear what plaintiffs mean by "pendency funds." Other courts have interpreted the term to refer to tuition reimbursement or funding to support an IEP placement. See J.T., 500 F. Supp. 3d at 181; Simpson-Vlach v. Mich. Dep't of Educ., No. 22-1724, 2023 WL 3347497 at *5 n.4 (6th Cir. May 10, 2023). But none of the named plaintiffs claim to have spent any money to support an educational placement due to defendants' actions. Nor do plaintiffs make any argument that the "pendency fund" remedy is

- 10 - defendants violated all of the statutes under which they bring

claims. Finally, plaintiffs ask for nominal and punitive damages.

Defendants moved to dismiss the complaint, arguing that

plaintiffs do not have standing; that their challenges are moot;

that they failed to exhaust their remedies under the IDEA as

required before bringing claims in federal court; and that their

non-IDEA counts fail to state claims on which relief can be

granted. Plaintiffs opposed the motion, and reiterated a request

they had made for a preliminary injunction.

C.

The district court granted defendants' motion to dismiss

and denied plaintiffs' request for a preliminary injunction.

Addressing the injunction first, the district court rejected the

idea that the switch to virtual learning constituted a change in

the students' educational placement, finding that a system-wide

change that applied to all students (not just disabled students)

did not constitute a change in placement. It also noted the

widespread pandemic impacts on other institutions, and the DOE's

guidance indicating that the provision of FAPE may include remote

instruction. Finally, although it did not refer to standing

meant to function as "[t]ort-like money damages," which in any case are unavailable under the IDEA. Diaz-Fonseca, 451 F.3d at 31 (quoting Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003)). Absent any other clues, we treat this request for that relief as part and parcel with plaintiffs' request of compensatory education.

- 11 - explicitly, the district court referenced the requirement recently

reiterated in TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210

(2021), that plaintiffs can seek injunctive relief only "so long

as the risk of harm is sufficiently imminent and substantial."

The district court noted that there were no indications that

defendants would close schools again, since schools had been

providing full-time in-person instruction in the 2021–2022 school

year.

Turning to the motion to dismiss, the district court

found that plaintiffs were required to exhaust all of their "FAPE-

related" claims (including claims under the IDEA, the associated

Massachusetts regulations, section 504, the ADA, and section 1983)

before bringing suit, which they had not done. Assuming without

deciding that exceptions to the exhaustion requirement might be

available, it further found that the exceptions would not apply

because plaintiffs had failed to allege a system-wide violation

(since the school closures did not change placements and so did

not constitute a violation), and because plaintiffs did not qualify

for any other kind of extraordinary exception.

The district court also concluded that plaintiffs had

failed to state a claim under section 504, the ADA, and

section 1983, because they had failed to allege animus or

conscience-shocking conduct. Finally, it held that plaintiffs had

failed to state a RICO claim because (1) they could not have

- 12 - deceived the DOE when their actions comported with DOE guidance,

and (2) there was no causal link between defendants' statements to

the DOE and the denial of a FAPE -- essentially, the alleged fraud

perpetrated on the government was not the act that caused

plaintiffs' harm. Plaintiffs timely appealed.

II.

We review the grant of a motion to dismiss de novo.

Union of Concerned Scientists v. Wheeler, 954 F.3d 11, 16 (1st

Cir. 2020). In so doing, we "assum[e] that all pleaded facts and

reasonable inferences drawn from them are true." Id.

Plaintiffs argue that the district court erred by

dismissing their claims and denying their request for a preliminary

injunction. Because a final judgment has been entered, the denial

of their request for a preliminary injunction has merged with the

judgment and become moot. See Harris v. Univ. of Mass. Lowell, 43

F.4th 187, 191 n.6 (1st Cir. 2022); Capriole v. Uber Techs., Inc.,

991 F.3d 339, 343 (1st Cir. 2021). So, we consider only the

challenge to the final judgment dismissing all claims and denying

final injunctive relief. In so doing, we begin with plaintiffs'

request for prospective declaratory and final injunctive relief

under the IDEA. We next address plaintiffs' claims for

retrospective relief under the IDEA and associated Massachusetts

regulations, section 504, the ADA, and the Fourteenth Amendment.

Finally, we conclude by addressing plaintiffs' RICO claim.

- 13 - A.

Plaintiffs argue that defendants violated their

procedural rights under the IDEA and its associated Massachusetts

regulations7 when they ordered and implemented remote schooling in

March 2020. This switch, they assert, constituted a change in

educational placement, which required notice and a convening of

IEP teams that did not occur. Plaintiffs claim that they are

entitled to an injunction requiring the students to "stay put" in

their current educational placement, which they insist is in-

person learning (and request a court order so declaring).

Defendants dispute that they violated the IDEA, but

claim in any event that plaintiffs do not have standing to seek

prospective declaratory relief or an injunction prohibiting school

closures, and that any such challenge is moot. We address these

arguments in turn.

In order to bring a lawsuit in federal court, plaintiffs

must have standing; that is, "plaintiff[s] must show (i) that

[they] suffered an injury in fact that is concrete, particularized,

and actual or imminent; (ii) that the injury was likely caused by

7 Because plaintiffs claim that the defendants' conduct violated the same requirements under both the IDEA and the implementing Massachusetts regulations, see 603 Mass. Code Regs § 28.01, our analysis of the IDEA claims also covers the associated claims for violations of 603 Mass. Code Regs § 28.08.

- 14 - the defendant; and (iii) that the injury would likely be redressed

by judicial relief." TransUnion, 141 S. Ct. at 2203 (citing Lujan

v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). "An inquiry

into standing must be based on the facts as they existed when the

action was commenced." Ramírez v. Sánchez Ramos, 438 F.3d 92, 97

(1st Cir. 2006). As the Supreme Court recently emphasized,

"plaintiffs must demonstrate standing for each claim that they

press and for each form of relief that they seek (for example,

injunctive relief and damages)." TransUnion, 141 S. Ct. at 2208.

"[A] person exposed to a risk of future harm may pursue

forward-looking, injunctive relief to prevent the harm from

occurring, at least so long as the risk of harm is sufficiently

imminent and substantial." Id. at 2210. The Supreme Court has

explained that this standard is satisfied "if the threatened injury

is 'certainly impending,' or there is a 'substantial risk' that

the harm will occur." Susan B. Anthony List v. Driehaus, 573 U.S.

149, 158 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S.

398, 409, 414 & n.5) (2013)). A threatened harm that is too

attenuated or too speculative does not provide standing to seek an

injunction. Clapper, 568 U.S. at 410; see also TransUnion, 141 S.

Ct. at 2212 (finding that "plaintiffs did not factually establish

a sufficient risk of future harm to support Article III standing"

because the risk that misleading credit information would be

disseminated to third parties was too speculative).

- 15 - In a similar vein, past harm does not confer standing to

seek forward-looking declaratory or injunctive relief unless there

is ongoing injury or a sufficient threat that the injury will

recur. See Efreom v. McKee, 46 F.4th 9, 21–22 (1st Cir. 2021);

City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (rejecting

the argument that Lyons might have standing based on past harm

from being choked by police, because "[a]bsent a sufficient

likelihood that he will again be wronged in a similar way, Lyons

[was] no more entitled to an injunction than any other citizen of

Los Angeles").

Defendants argue that plaintiffs do not face a real or

imminent threat of being switched to remote instruction again,

particularly because the executive orders closing schools expired

in June 2020, all schools were providing in-person instruction by

May 2021, Massachusetts's state of emergency lapsed in June 2021,

and the restrictions that were imposed during the emergency have

been rescinded. Plaintiffs maintain that they have shown a

likelihood of future harm because "COVID-19 remains ever-present,

with the imminent possibility of further variants" and they "seek

a guarantee that [in-person education] will continue in the face

of strikes, understaffing, or illness outbreaks." But merely

invoking the possibility of these events is not enough to show

that they are "certainly impending" or that there is a "substantial

risk" they will occur. Plaintiffs plead no facts suggesting that

- 16 - another school closure is imminent. See Simpson-Vlach v. Mich.

Dep't of Educ., No. 22-1724, 2023 WL 3347497 at *4 (6th Cir.

May 10, 2023) (holding that an allegation that schools could again

close due to COVID-19 "is too general to establish that the

threatened injury is 'certainly impending' rather than merely

possible" (quoting Clapper, 568 U.S. at 409)). In our case, as in

Simpson-Vlach, "the risk of future harm turns on a hypothetical

sequence of events: that students would again switch to an extended

period of remote instruction, that this switch would constitute a

change in placement under their IEP, that the school would fail to

follow the IDEA's procedural protections, and that these

violations would cause harm in a similar manner." Id. Such a

sequence is too attenuated to support a claim that future injury

is certainly impending, or that there is a substantial risk it

will occur. Thus, plaintiffs' alleged past injury cannot support

standing to seek an injunction against future harm. Nor can the

request for forward-looking declaratory relief survive the absence

of any live case or controversy. See California v. Texas, 141 S.

Ct. 2104, 2115–16 (2021).

We consider next an independent reason for dismissing

plaintiffs' requests for forward-looking declaratory relief

decreeing that student plaintiffs' proper placement is in person,

and for injunctive relief prohibiting a switch to remote learning.

- 17 - The requests are moot because defendant school districts have

returned to in-person learning, no plaintiff is now enrolled in

any of the three defendant school districts, and no exceptions to

the mootness doctrine are applicable here.8

A claim for injunctive relief becomes "moot when the

issues presented are no longer 'live' or the parties lack a legally

cognizable interest in the outcome." Am. Civil Liberties Union of

Mass. v. U.S. Conf. of Cath. Bishops (ACLU of Mass.), 705 F.3d 44,

52 (1st Cir. 2013) (quoting D.H.L. Assocs. v. O'Gorman, 199 F.3d

50, 54 (1st Cir. 1999)). "A party can have no legally cognizable

interest in the outcome of a case if the court is not capable of

providing any relief which will redress the alleged injury."

Harris, 43 F.4th at 191 (quoting Gulf of Me. Fishermen's All. v.

Daley, 292 F.3d 84, 88 (1st Cir. 2002)).

8 It was not revealed until oral argument in this case that plaintiff P.M. had withdrawn from the Somerville Public Schools. Counsel for both sides represented that fact, with counsel for the school district filing a letter pursuant to Federal Rule of Appellate Procedure 28(j) after argument to confirm. But because "we have an 'independent obligation to examine [our] own jurisdiction,'" and because mootness raises a jurisdictional question, we may (and indeed, must) consider this argument nonetheless. Harris, 43 F.4th at 191 n.7 (alteration in original) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). We therefore consider the mootness argument based on the status of plaintiffs' school enrollment, despite the late-breaking nature of that argument, along with defendants' earlier-raised mootness arguments regarding the withdrawal of the challenged policies implementing remote schooling.

- 18 - That is the situation here, at least with respect to

plaintiffs' claims for prospective declaratory and injunctive

relief. Schools in Massachusetts have returned to in-person

learning and plaintiffs concede that "students are now being

educated in-person." Additionally, plaintiffs A.R. and S.P. have

graduated from their respective school districts, and as the

parties informed the court at oral argument, P.M. has withdrawn

from the Somerville Public Schools.9 "Thus, there is simply 'no

ongoing conduct to enjoin' presently affecting [any] student."

Id. at 192 (quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 9

(1st Cir. 2021). These developments doom plaintiffs' request for

prospective declaratory relief regarding pendency placements too.

With the challenged policies no longer in effect, and no named

plaintiff subject to any policy set by any defendant school

district, a declaratory judgment would be purely advisory.10

This is not to say that the case as a whole is moot.

Plaintiffs could still recover for past harm if their claims had

9 No party has informed the court where P.M. is currently attending school; they have only noted that he no longer attends the Somerville Public Schools. Plaintiffs do not assert that P.M. is attending a different public school. 10 The fact that plaintiffs' complaint is pled as a putative class action does not alter this result. Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001) (explaining that a putative class action "ordinarily must be dismissed as moot if no decision on class certification has occurred by the time that the individual claims of all named plaintiffs have been fully resolved").

- 19 - merit. But that does not assist them with their request for

injunctive and declaratory relief based on the possibility of

future harm. See Town of Portsmouth v. Lewis, 813 F.3d 54, 58–60

(1st Cir. 2016) (finding that claims for declaratory and injunctive

relief were moot, though the court acknowledged that claim for

restitution might survive).

Nor can plaintiffs rely on any exception to the mootness

doctrine to reanimate their requests for forward-looking relief.

Courts may allow a claim to proceed if a plaintiff's claim has

become moot, but the underlying type of event is "capable of

repetition, yet evading review." See Harris, 43 F.4th at 194

(quoting Kingdomware Techs., Inc. v. United States, 579 U.S. 162,

170 (2016)). To fall within this exception, plaintiffs would have

to show both that there is a "'reasonable expectation' or

'demonstrated probability' that [they] 'will again be subjected to

the alleged illegality,'" id. at 195 (alteration in original)

(emphasis omitted) (quoting ACLU of Mass., 705 F.3d at 57), and

that "the types of claims they bring 'are inherently transitory,'

or 'there is a realistic threat that no trial court ever will have

enough time to decide the underlying issues (or, at least, to

[certify a class]) before a named plaintiff's individual claim

becomes moot,'" id. at 194 (alteration in original) (quoting Cruz

v. Farquharson, 252 F.3d 530, 535 (1st Cir. 2001)). Plaintiffs

cannot show either in this instance.

- 20 - Plaintiffs assert that P.M. could move back into his

former school district, which could perhaps be subject to another

closure during P.M.'s tenure. Plaintiffs also argue more broadly

that it is plausible that school closures will recur. But to

escape a finding of mootness, review-avoiding repetition must be

reasonably expected. Id. at 195 ("[A]voiding mootness cannot rest

on 'speculation' about some future potential event." (quoting

Pietrangelo v. Sununu, 15 F.4th 103, 106 (1st Cir. 2021))).

Nothing in the record indicates either that P.M. expects to

transfer back to the Somerville Public Schools, or that schools in

Massachusetts can be reasonably expected to again switch to virtual

learning. Nor do plaintiffs argue that their claims for

prospective declaratory and injunctive relief are "inherently

transitory" such that no court could ever address them in time

with respect to any potential plaintiff.11 Id. at 194 (quoting

ACLU of Mass., 705 F.3d at 57). Plaintiffs' claims therefore do

not fall into the mootness exception for those claims that are

capable of repetition yet evade review.12

11 As plaintiffs' counsel acknowledged at argument, in response to a question about whether plaintiffs' claim evades review, "it would have been better to bring [this case] sooner." 12 Plaintiffs do not invoke by name the voluntary cessation exception to mootness, which allows claims that would otherwise be moot to proceed where "'a defendant voluntar[ily] ceases the challenged practice in order to moot the plaintiff's case and there exists a reasonable expectation that the challenged conduct will be repeated' after the suit's 'dismissal.'" Bos. Bit Labs, 11 F.4th at 9 (quoting Lewis, 813 F.3d at 59). In any event, for the

- 21 - In sum, we hold that plaintiffs' requests for an

injunction prohibiting a future switch to remote learning and a

declaratory judgment that plaintiffs' proper placement is in

person are not justiciable, both because plaintiffs lack standing

to seek these remedies and because any dispute about whether

schools should be prohibited from closing is moot. Plaintiffs'

claims, to the extent they sought the aforementioned injunctive

and declaratory relief aimed at adjudicating future events, were

properly dismissed. See In re Evenflo Co., Inc. Mkting., Sales

Pracs., & Products Liab. Litig., 54 F.4th 28, 41 (1st Cir. 2022)

(affirming dismissal on standing grounds for claims insofar as

they requested injunctive relief).

Having considered and rejected plaintiffs' claims for

forward-looking injunctive and declaratory relief under the IDEA

based on any assertion that schools might again close, we turn to

their claims for relief based on alleged past violations of the

IDEA and associated regulations, section 504, the ADA, and the

Fourteenth Amendment (as enforced via section 1983). We conclude

that these claims were properly dismissed because plaintiffs

same reasons that plaintiffs' claim is not reasonably likely to recur, they cannot show a "reasonable expectation that the challenged conduct will be repeated" to support this exception either. Id.

- 22 - failed to exhaust their administrative remedies under the IDEA, as

required, or their claims were otherwise lacking.

Parties who wish to sue for violation of the IDEA must

first exhaust the IDEA's administrative remedies. See Rose v.

Yeaw, 214 F.3d 206, 210 (1st Cir. 2000). The IDEA's exhaustion

requirement applies not only to suits alleging violations of the

IDEA itself, but also to "civil action[s] under [other] laws

seeking relief that is also available under this chapter." 20

U.S.C. § 1415(l). Plaintiffs must therefore exhaust

administrative remedies if they seek relief available under the

IDEA -- that is, if plaintiffs allege denial of a FAPE and ask for

a remedy the IDEA can provide -- even if their claims (like several

of plaintiffs' here) are brought under other statutes. See Fry v.

Napoleon Cmty. Schs., 580 U.S. 154, 165 (2017); Perez, 143 S. Ct.

at 865.

Plaintiffs do not appear to contest the first necessary

condition for invoking the exhaustion requirement, i.e., that all

of their claims (even those brought under statutes other than the

IDEA) are based on denial of a FAPE. They do argue that their

non-IDEA claims have different elements and allege distinct

injuries. But this is not the test for whether a claim alleges

denial of a FAPE; rather, the court must "look to the substance,

or gravamen, of the plaintiff's complaint" and determine whether

it seeks relief for denial of a FAPE. Fry, 580 U.S. at 165. Where

- 23 - a lawsuit "cannot be . . . isolated from the special education

services guaranteed by the IDEA" -- that is, where the conduct

alleged is unlawful only because it concerns the special rights

and services guaranteed by the IDEA for education -- this condition

is met. Parent/Professional Advocacy League, 934 F.3d at 26

(explaining that exhaustion is required where complaints allege

"that discriminatory treatment resulted in the denial of an

adequate education or in an inappropriate placement," or where

"the effects of the isolation or separation were educational").

Plaintiffs do not argue that their lawsuit does not fall into this

category; indeed, even the non-IDEA claims clearly are predicated

upon a denial of a FAPE. Plaintiffs assert that the schools

violated section 504, the ADA, and the Fourteenth Amendment by

discriminating against the plaintiffs on the basis of their

disabilities because those plaintiffs require in-person

instruction in order to receive a FAPE. Moreover, the harm they

allege -- regression and loss of competencies -- is directly

attributed to defendants' alleged failure to provide the education

plaintiffs say is required by the IDEA. Therefore, to the extent

that the section 504, ADA, and section 1983 claims seek relief

available under the IDEA (a question we will return to shortly),

they were required to be administratively exhausted.

Plaintiffs do not claim to have exhausted their

administrative pursuit of the remedies they seek. Plaintiffs

- 24 - nevertheless argue that this failure to exhaust should be excused.

Plaintiffs bear the burden of showing that any excuse to the

exhaustion requirement applies. Rose, 214 F.3d. at 211. We

address each of their claimed excuses in turn.

First, plaintiffs argue that exhaustion would be futile.

Our circuit has recognized a futility exception to the IDEA's

exhaustion requirement where "(1) the plaintiff's injuries are not

redressable through the administrative process, and (2) the

administrative process would provide negligible benefit to the

adjudicating court." Doucette, 936 F.3d at 31 (internal citations

omitted). Relatedly, the Supreme Court in Perez recently held

that § 1415(l) does not bar a lawsuit requesting under a different

statute a remedy unavailable under the IDEA. 143 S. Ct. at 865

(explaining that when a plaintiff seeks relief under other federal

statutes for conduct that violates the IDEA, the plaintiff need

not exhaust "if the remedy a plaintiff seeks is not one IDEA

provides").

Plaintiffs argue that some of the remedies they seek --

specifically, forward-looking declaratory and injunctive relief

prohibiting defendants from requiring the students to participate

in distance rather than in-person learning -- are unavailable under

the IDEA and cannot be provided through the administrative

- 25 - process.13 But, as we have explained, whether or not those claims

need have been exhausted is of no moment because those claims

independently fail for lack of standing and mootness.

Plaintiffs also argue that they allege a so-called

system-wide violation, for which exhaustion is not needed. In

Parent/Professional Advocacy League, we noted that "[o]ther

circuits" have defined a "systemic" exception to the IDEA's

exhaustion requirement, but we did not clarify whether such an

exception was available in this circuit. 934 F.3d at 27. Rather,

we concluded that if such an exception was available, the

13 Plaintiffs made this argument in their briefs only as to their requests for prospective declaratory and injunctive relief, and did not make this argument as to any other form of relief. We therefore do not consider this argument as to any other form of relief requested in their complaint. Plaintiffs' counsel asserted for the first time at oral argument that plaintiffs' claims for declaratory relief and nominal damages were excused from exhaustion because they were unavailable through the administrative process. But these late-breaking arguments fall under the "familiar rule that, 'except in extraordinary circumstances, arguments not raised in a party's initial brief and instead raised for the first time at oral argument are considered waived.'" Conduragis v. Prospect Chartercare LLC, 909 F.3d 516, 518 n.2 (1st Cir. 2018) (quoting United States v. Pulido, 566 F.3d 52, 60 n.4 (1st Cir. 2009)). We see no exceptional circumstances that warrant excusing that waiver here. See id. Plaintiffs' late argument that it would be futile to seek compensatory education through the administrative process because plaintiffs could not obtain this remedy administratively once they turn twenty-one is deemed waived for the same reason.

- 26 - plaintiffs there had not alleged a claim that fell within its

contours. Id. at 27–28.

Here, too, we conclude that even if such an exception is

available, plaintiffs have not shown that they qualify for it. In

Parent/Professional Advocacy League, we cautioned that, assuming

a systemic exception is available, for it to apply, "the alleged

violations must be 'truly systemic . . . in the sense that the

IDEA's basic goals are threatened on a systemwide basis.'" Id. at

27 (omission in original) (quoting Hoeft v. Tucson Unified Sch.

Dist., 967 F.2d 1298, 1305 (9th Cir. 1992)). We then held that

the claims before us in that case did not fall into such an

exception because "[a] finding that one student with a certain

type and degree of mental health disability should have been

mainstreamed would not mean that another student with a different

type, or even just a different degree, of mental health disability

should have received the same services or been mainstreamed." Id.

at 27–28.

Plaintiffs contend that here, the school closures

constituted a system-wide action that cannot be addressed through

the administrative process. To the extent this merely restates

their futility argument, we explained above why that argument fails

to show that they are excused from exhaustion. And although

plaintiffs purport to challenge a system-wide action, even courts

that have recognized a systemic exception have cautioned that it

- 27 - "is not met every time a plaintiff challenges centralized, uniform

policies that affect all students within a school or school

district." T.R. v. Sch. Dist. of Phila., 4 F.4th 179, 192 (3d

Cir. 2021); see Hoeft, 967 F.2d at 1304–05. Rather, the exception

applies where the challenged violation "ha[s] the practical effect

of denying the plaintiffs a forum for their grievances," Hoeft,

967 F.2d at 1304, such as those that challenge the administrative

process itself or the process for identifying children with

disabilities, Parent/Professional Advocacy League, 934 F.3d at 27.

Plaintiffs' claim here does not fall into this category. See

Carmona v. N.J. Dep't of Educ., No. 21-18746, 2022 WL 3646629, at

*5 (D.N.J. Aug. 23, 2022) (explaining that issues regarding

notice, pendency placements, and IEP meetings as school districts

and states responded to the pandemic "implicate individualized

inquiries regarding the notice each School District Defendant

provided, each student Plaintiff's particular IEP, and how each

student Plaintiff's access to educational opportunities compared

to that of their non-disabled peers in the same school district");

T.R., 4 F.4th at 193–94; Parent/Professional, 934 F.3d at 27–28.

And although plaintiffs state in passing that their complaints

would "overwhelm the administrative system," they do not develop

this argument. We therefore conclude that plaintiffs have failed

to show that they are entitled to a systemic exception to the

- 28 - IDEA's exhaustion requirement, assuming without deciding that such

an exception is available in this circuit.

Finally, plaintiffs contend that administrative remedies

would provide inadequate relief. This argument essentially

mirrors their futility argument -- they assert only that an

administrative officer cannot declare that students' pendency

placement is in-person, nor could such an officer enjoin defendants

from closing schools again. As with their futility claim,

plaintiffs' request for this relief is not now justiciable by a

federal court, so it cannot provide a basis for excusing

exhaustion. And plaintiffs have not provided any other reason why

administrative remedies would provide them inadequate relief.

* * *

Plaintiffs' IDEA, section 504, ADA, and section 1983

claims were thus properly dismissed in full, either because

plaintiffs lacked standing to request the relief sought, the claims

were moot, and/or because they were required to exhaust

administrative remedies and failed to do so. Our conclusions

accord with those of other courts that have considered similar

claims alleging violations of the same laws based on the switch to

remote learning. See J.T. v. de Blasio, 500 F. Supp. 3d 137, 193–

194 (S.D.N.Y. 2020); Bills v. Va. Dep't of Educ., 605 F. Supp. 3d

- 29 - 744, 753–54 (W.D. Va. 2022); Simmons v. Pritzker, No. 22-cv-0123,

2022 WL 7100611, at *5 (N.D. Ill. Oct. 12, 2022).

Finally, we turn to plaintiffs' RICO claim. As the

district court aptly summarized, "[t]he thrust of plaintiffs' RICO

claims is that [defendants] misrepresented to the USDOE that they

provided plaintiffs with a FAPE in compliance with the IDEA, and

received federal funds intended for plaintiffs' benefit through

mail and wire fraud (the racketeering acts)." The district court

concluded that this claim should be dismissed because there was no

"causal link" between the denial of a FAPE and the alleged RICO

predicate acts (the statements to the USDOE and receipt of funds).

Courts across the country have concluded that similarly

situated plaintiffs (represented by the same counsel), alleging

RICO claims based on receipt of federal funds while allegedly

violating the IDEA by switching to remote education, failed to

allege statutory standing under RICO because they failed to allege

that the purported mail and wire fraud proximately caused their

injuries. See J.T., 500 F. Supp. 3d at 166; Simpson-Vlach, 2023

WL 3347497, at *7–8; Bills, 605 F. Supp. 3d at 758; Simmons, 2022

WL 7100611, at *6; Carmona, 2022 WL 3646629, at *7. We find these

analyses persuasive and conclude that plaintiffs have failed to

demonstrate RICO standing.

- 30 - RICO provides a cause of action for those "injured in

[their] business or property by reason of" a violation of that

statute. 18 U.S.C. § 1964(c). Plaintiffs must be able to show

that the predicate acts alleged proximately caused the harm they

suffered. Holmes v. Sec. Inv. Protection Corp., 503 U.S. 258, 268

(1992). Indirect or downstream harm does not establish statutory

standing to pursue a RICO claim. Hemi Grp., LLC v. City of New

York, 559 U.S. 1, 9–11 (2010).

We train our attention on three factors when assessing

causation under RICO:

(1) "concerns about proof" because "the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff's damages attributable to the violation, as distinct from other, independent, factors"; (2) "concerns about administrability and the avoidance of multiple recoveries"; and (3) "the societal interest in deterring illegal conduct and whether that interest would be served in a particular case." As to this third factor, "directly injured victims can generally be counted on to vindicate the law . . . without any of the problems attendant upon suits by plaintiffs injured more remotely."

Sterling Suffolk Racecourse, LLC v. Wynn Resorts, Ltd., 990 F.3d

31, 35–36 (1st Cir. 2021) (omission in original) (internal

citations omitted).

These factors preclude finding causation in this case.

First, there is clearly an independent factor that accounts for

plaintiffs' alleged injury: the pandemic, and subsequent response

- 31 - to the global health emergency, not the allegedly false

certifications. See Anza v. Ideal Steel Supply Corp., 547 U.S.

451, 459 (2006) (no causation in part because "Ideal's lost sales

could have resulted from factors other than petitioners' alleged

acts of fraud"); Camelio v. Am. Fed'n., 137 F.3d 666, 670–71 (1st

Cir. 1998) (no causation where predicate acts alleged "did not

cause" loss of plaintiff's job or membership in union). In an

opinion addressing a similar claim, the Sixth Circuit recently

found that "defendants could have violated the procedural

guarantees of the IDEA for many reasons that do not stem from the

false assurances, and the plaintiffs' regression in skills could

have resulted from 'factors other than [defendants'] alleged acts

of fraud.'" Simpson-Vlach, 2023 WL 3347497, at *7 (alteration in

original) (quoting Anza, 547 U.S. at 459). The presence of an

intervening factor, and the resulting attenuation of the injury,

makes it less likely that plaintiffs can meet the causation

requirement for RICO standing.

Second, as the proximate victim of the alleged fraud,

the United States would be the better party to sue were there

fraud. See Anza, 547 U.S. at 460. Other courts have pointed to

this as a reason why similar plaintiffs lacked RICO standing. See

Simpson-Vlach, 2023 WL 3347497, at *7 ("The allegedly false

assurances were made to the Department of Education, not to the

plaintiffs, meaning that the federal government was the direct

- 32 - victim, whereas the plaintiffs suffered only passed-on

injuries."); J.T., 500 F. Supp. 3d at 166 ("[T]his alleged fraud

was not perpetrated on Plaintiffs. Rather, the purported frauds

targeted the United States . . . ."); Bills, 605 F. Supp. 3d at

758 ("Even taking Plaintiffs' allegations as true . . . [they]

have, at most, alleged that Defendants committed fraud against the

United States -- not against Plaintiffs.").

Third, as to the directness of the harm, the "scheme"

plaintiffs allege -- false certifications to the DOE and subsequent

receipt by the state and school districts of IDEA Part B funds --

did not directly target plaintiffs, nor did it directly result in

denial of a FAPE. See J.T., 500 F. Supp. 3d at 166 (explaining

that "the alleged frauds cannot form the basis for relief under

the civil RICO statute in a case brought by disabled students and

their parents, whose claim is that the children were not provided

with a FAPE -- not that they (the Plaintiffs) were defrauded in

any way"). Plaintiffs claim that if defendants had not committed

the fraud, "the money sent to the School Districts would have gone

toward providing a FAPE to the Students." But, as the district

court recognized, the alleged fraud and failure to provide a FAPE

cannot be so directly linked.

Plaintiffs cite Alix v. McKinsey & Co., Inc., 23 F.4th

196 (2d Cir. 2022), for the proposition that causation can be

established where a fraud on the judiciary "or other governmental

- 33 - entity" resulted in a resource going to someone less deserving.

Setting aside that that case involved a fraud against a court and

thus presented a different scenario, the wrongful conduct in Alix

directly reduced the chance of the plaintiff getting a resource in

what was meant to be a fair competition. Id. at 205–06. Here,

plaintiffs were not competing for IDEA funds, so they did not lose

anything by those funds being granted to their school districts in

the way that the plaintiffs in Alix lost business and the

opportunity to participate in a fair bid process as a direct result

of fraud. Thus, that case does not assist them.

In sum, because plaintiffs failed to allege that their

injury was proximately caused by alleged racketeering acts, they

cannot maintain their RICO claim. Holmes, 503 U.S. at 276; see

also Simpson-Vlach, 2023 WL 3347497, at *7–8. That claim too was

properly dismissed by the district court. We do not address

defendants' arguments that the RICO claim fails for other reasons

as well.

III.

For the foregoing reasons, the district court's order

dismissing plaintiffs' claims is affirmed.

- 34 -