1 17-383-cv Toth v. City of N.Y. Dep’t of Educ.

UNITED STATES COURT OF APPEALS
FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 2 nd day of January, two thousand eighteen.

PRESENT: B ARRINGTON D. P ARKER

, G ERARD E. L YNCH

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

---------------------------- ---------------------------- -------------- J ERRY G EZA T OTH

, ON BEHALF OF T.T., Plaintiff-Appellant

,

v. No. 17-383-cv

C ITY OF N EW Y ORK D EPARTMENT OF E DUCATION

, Defendant-Appellee

. *

---------------------------- ---------------------------- --------------

FOR PLAINTIFF-APPELLANT: J ERRY G. T OTH , Law Office of J. G. Toth, Flushing, NY.

FOR DEFENDANT-APPELLEE: E RIC L EE

, Assistant Corporation Counsel (Fay Ng, Assistant Corporation Counsel, of counsel ), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY.

* The Clerk of Court is directed to amend the caption as set forth above.2 Appeal from a January 10, 2017 , judgment of the United States District Court for the Eastern District of New York (Townes, J .; Orenstein, M.J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the Plaintiff-Appellant’s motion to supplement the record on appeal
is GRANTED IN PART AND DENIED IN PART , the judgment of the district court is
VACATED , and the case is REMANDED for further proceedings.

Plaintiff-Appellant Jerry Geza Toth, proceeding pro se on behalf of his minor son T.T., appeals from a judgment of the district court dismissing his complaint as moot.

T.T. has autism. Pursuant to the In dividuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. , Defendant-Appellant the Ne w York City Department of Education (“the DOE”) prepared individua lized education programs (“IEPs”) for T.T. Toth challenged T.T.’s 2013 IEP on the grou nd that it provided for insufficient Applied Behavior Analysis (“ABA”) therapy for T. T. because it recommended only ten hours of that therapy per week instead of fifteen hour s. After Toth’s claim was rejected by the State of New York administrative adjudicators, he filed a complaint in the district court seeking, inter alia , “an award of compensatory ABA therapy.” J.A. 239.

The DOE moved to dismiss Toth’s complaint. It argued in relevant part that Toth’s claim was moot because the parties had entere d into a resolution agreement in conjunction with Toth’s challenge to a different IEP that required the DOE to prov ide T.T. with fifteen hours of ABA therapy per week. Toth opposed the DOE’s motion, arguing that his claim fell within the exception to th e mootness doctrine for clai ms capable of repetition yet evading review. See Nat’l Org. for Marriag e, Inc. v. Walsh , 714 F.3d 682, 692 (2d Cir. 2013). He also submitted a cross-mo tion seeking to file an am ended complaint requesting injunctive relief ordering the DO E to provide T.T. with 1,00 0 hours of compensatory ABA therapy.

The district court referred the DOE’s motio n to a magistrate judge, who issued a report recommending that the DOE’s moti on to dismiss be granted and Toth’s cross-motion be denied. With respect to th e DOE’s motion, the magistrate judge reasoned that the exception to the mootness doctrine did not apply because any “concern that the DOE will . . . revert[] . . . to an IEP . . . with decreased at-home ABA therapy is mere speculation.” J.A. 402. The magistrate judge then determined that permitting Toth to amend his complaint to reques t 1,000 compensatory hours of ABA therapy would be futile because Toth’s proposed amended complaint did not allege that T.T. would suffer irreparable harm as is required to obtain injunctive relief. The magistrate judge also noted3 that it was not even clear that it would be prac tical for T.T. to receive five additional hours of ABA therapy every day. T oth then objected to the ma gistrate judge’s report and recommendation, arguing as relevant here that the risk that the DO E would revert to a lower level of ABA therapy was not speculative.

The district court found Toth’s objections to be meritless, and therefore adopted the report and recommendation, and granted the DOE’s motion to dismiss and denied Toth’s motion to amend. In so doing, the court not ed that Toth had “not argued that the most current IEP does not provide for 15 hours of at-home therapy.” J.A. 505.

Toth then filed this appeal, in which he ar gues that this case is not moot and that the
district court erred when it declined to allo w him to file his amended complaint seeking 1,000 hours of compensatory education. He has since moved to supplement the record on appeal with several documents, including a copy of T.T.’s most recent IEP, which apparently fails to recommend any ABA therapy and orders only three hours of individual therapy of any type per week.

We assume the parties’ familiarity with th e remaining facts, the procedural history of the case, and the issues on appeal. We gran t in part and deny in part Toth’s motion to supplement the record, and vacate the judgment of the district court and remand.

I. Toth’s Motion to Suppleme nt the Record on Appeal

Federal Rule of Appellate Procedure 10(a)(1 ) provides that the record on appeal is generally comprised of (1) the “papers and exhi bits filed in the district court,” (2) “the transcript of the proceedings,” and (3) “a certif ied copy of the docket entries.” Fed. R. App. P. 10(a). We therefore do not consider evidence that was not part of the record
below “absent extraordin ary circumstances.” Int’l Bus. Machs. Corp. v. Edelstein , 526 F.2d 37, 45 (2d Cir. 1975).

Such circumstances exist here with respect to T.T.’s most recent IEP. That IEP, unlike T.T.’s prior IEP, which is in the original record on appeal, does not require ABA therapy. Since both the magistrate judge and district court concluded that Toth’s claim
did not fall within th e capable of repetition yet evading review exception to the mootness
doctrine because Toth’s claim th at T.T.’s ABA therapy might be reduced was speculative,
T.T.’s most recent IEP is relevant. We theref ore grant Toth’s motion as to T.T.’s IEP for the 2016-2017 school year.

We deny Toth’s motion insofar as it seeks to add other documents to the record,
however. Toth has not establis hed relevance or importance as to any of those documents.4 There are therefore no extraordinary circumst ances that warrant expanding the record to
include those other documents.

II. The District Court’s Conclusion that Toth’s Claim Was Moot

We agree with Toth’s contenti on that his claim is not moot.

“We review de novo the district court’s conclusion th at [a plainti ff’s] claims are

moot.” Cty. of Suffolk v. Sebelius , 605 F.3d 135, 139 (2d Cir. 2010).

“A case is moot when the i ssues presented are no longer live or the parties lack a legally cognizable intere st in the outcome.” Tann v. Bennett , 807 F.3d 51, 52 (2d Cir. 2015) (internal quotation marks omitted). “A party seeking to have a case dismissed as moot bears a heavy burden.” Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ. , 397 F.3d 77, 84 (2d Cir. 2005). An excep tion to the mootness doctrine applies to “cases capable of repetition, yet evading review.” Walsh , 714 F.3d at 692 (inter nal quotation marks omitted). More specifically, th at exception “applies where (1 ) the challenged action is in its duration too short to be fully litigated prio r to cessation or expirati on, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id. (internal quotation marks omitted).

In this case, both the magist rate judge and district cour t concluded that the first prong of the exception to the mootness doctr ine was satisfied. They nevertheless concluded that the exception did not apply because they determin ed that the risk that the
DOE would issue a new IEP that decreased T.T.’s ABA therapy was speculative. The fact
that the DOE has now issued a new IEP that eliminates ABA therapy establishes that Toth’s concern is no longer sp eculative. Indeed, the magist rate judge even recognized
that if the DOE issued an IE P such as the one it now has, Toth’s argument “that the prior IEP would be repeated” “would no longer be mere speculation.” J.A. 402 n.4. The district court similarly noted that Toth had “ not argued that the most current IEP does not provide for 15 hours of at-home therapy.” J.A. 505. Both the magistrate judge and the
district court therefore conditioned their moot ness analysis on a factual situation that has materially changed. Thus, Toth’s claim is no longer moot.

III. Toth’s Motion to Amend His Complaint

In light of our conclusion th at Toth’s claim presents a li ve controversy, we need not consider Toth’s argument regarding his amende d complaint. The magistrate judge found that there were pleading deficiencies with To th’s proposed amended complaint such that it would be futile to grant him leave to file it. If, however, Toth rectifies those purported5 deficiencies and files a new motion to amen d his complaint on remand that the district court grants, then his claim would not be moot for the additional reason that he seeks 1,000 hours of compensatory education. Compensa tory education is a remedy “‘calculated to provide the educational benefits that likel y would have accrued from special education
services the school district should ha ve supplied in the first place.’” Doe v. East Lyme Bd. of Educ. , 790 F.3d 440, 457 (2 d Cir. 2015) (quoting Reid ex rel. Reid v. D.C. , 401 F.3d 516, 524 (D.C. Cir. 2005)). As we observed in Lillbask , 397 F.3d at 89, “several of our
sister circuits have concluded that a claim for compensatory education or reimbursement can defeat a mootness challenge in an IEP pl acement dispute.” Thus, Toth would have a legally cognizable interest in the outcome of this litigation insofar as he seeks services to make up for a prior IEP’s inadequacies. We therefore leave it to the district court to
determine on remand whether Toth should be permitted to ame nd his complaint if he cures
the deficiencies in his initial motion and f iles a new motion to amend his complaint.

IV. Conclusion

For the foregoing reasons, we GRANT IN PART AND DENY IN PART Toth’s motion to supplement the record on appeal, VACATE the judgment of the district court,

and REMAND for further proceedings consistent with this order.

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