Roe v. Healey ( 2023 )

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
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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
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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
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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
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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.
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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).
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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
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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
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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.
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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
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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.
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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.
1.
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.
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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).
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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
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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).
2.
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.
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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.
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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").
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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.
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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
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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).
B.
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
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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.
1.
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.
2.
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
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IDEA's exhaustion requirement, assuming without deciding that such
an exception is available in this circuit.
3.
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).
C.
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.
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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.
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