UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JACQUES BENOIT and : CAMILLE COLLETTE, : : Plaintiffs, : Civil Action No.: 18-1104 (RC) : v. : Re Document No.: 8 : DISTRICT OF COLUMBIA, : : Defendant. :

MEMORANDUM OPINION

DENYING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

I. INTRODUCTION

Plaintiffs Jacques Benoit and Camille Collette brought this suit against the District of

Columbia under the Individuals with Disabilities Education Act to seek review of various

portions of a February 18, 2018 Hearing Officer Determination concerning the education of their

son E.B. As alleged in their complaint, the Hearing Officer Determination incorrectly denied

relief on a number of Plaintiffs’ claims. In this motion however, Plaintiffs ask for a preliminary

injunction compelling Defendant’s compliance with those portions of the Hearing Officer

Determination on which they prevailed. While the Court is inclined to agree with Plaintiffs’

substantive arguments regarding Defendant’s payment obligations under the HOD, the relief

requested falls outside the scope of the claims brought in the complaint. Plaintiffs have also

failed to show that they will suffer irreparable harm absent an injunction. Accordingly, the Court

denies the preliminary injunction. Plaintiffs are free to amend the complaint to bring a claim for

enforcement of the relevant portions of the Hearing Officer Determination. II. FACTUAL BACKGROUND

This case marks the latest development in a long-running dispute between Plaintiffs

Jacques Benoit and Camille Collette (“Benoit and Collette”) and Defendant the District of

Columbia (“the District”) regarding the education of E.B., Benoit and Collette’s son. E.B. is a 9-

year old child with Autism Spectrum Disorder. Compl. ¶ 4, ECF No. 1. In the spring of 2012,

E.B. was determined to be eligible for special education services and, pursuant to the Individuals

with Disabilities Education Act (“IDEA”), the District developed an Individualized Education

Program (“IEP”) for him. See id. ¶ 7. Between 2012 and 2014, Benoit and Collette allege that

the District failed to offer school placements that could implement the IEP and refused to

acknowledge E.B.’s disability. See id. ¶¶ 8-19. And over the next three years, Benoit and

Collette allege that the District developed updated IEPs in 2014, 2015, and 2016 that each

significantly decreased the amount of special education services provided to E.B. See id. ¶¶ 22,

27, 31. Benoit and Collette placed E.B. in private school at The Auburn School between 2014

and 2016 rather than go through with the District’s IEPs. See id. ¶¶ 25, 28. When E.B. was

placed at the public Murch Elementary School between 2016 and 2017, they allege that he

suffered significant emotional and behavioral issues. See id. ¶ 33. After the District failed to

update E.B.’s IEP at the conclusion of the 2016-2017 school year, Benoit and Collette returned

him to The Auburn School for 2017-2018, see id. ¶ 42, and began legal action.

Between January and February 2018, an administrative hearing was held pursuant to the

IDEA regarding E.B.’s education. Compl. ¶ 47. On February 18, 2018, the Hearing Officer

issued a Hearing Officer Determination (“HOD”). Compl. ¶ 48. In the HOD, the Hearing

Officer found that the District had denied E.B. a Free and Appropriate Education (“FAPE”) as

required by the IDEA by failing to provide an appropriate IEP for the 2016-2017 and 2017-2018

2 school years. See HOD Determination at 27–28, 31, Pl.’s Second Mot. Prelim. Inj. Ex.1, ECF

No. 8-3. After finding that Benoit and Collette had acted reasonably and placed E.B. in an

appropriate private school following the District’s denial of a FAPE for the 2017-2018 school

year, the Hearing Officer ordered the District to reimburse Benoit and Collette for the expenses

associated with enrolling E.B. at The Auburn School between the fall of 2017 and February 18,

2018. See id. at 31. And as compensatory education for the denial of the FAPE for the 2016-

2017 school year, the Hearing Officer also ordered that the District “fund [E.B.’s] continued

placement at [The Auburn School] for the remainder of the 2017-2018 school year.” Id. at 37.

The Hearing Officer emphasized that any concerns about the lack of interaction between students

at The Auburn School and typically developing peers were “offset by the undisputed fact that

[E.B.] [was] receiving educational benefit at” The Auburn School. Id. at 38. On the other hand,

the HOD also denied relief on a number of Benoit and Collette’s claims, including claims for

relief based on the District’s actions in the 2015-2016 school year that the Hearing Officer

determined were barred by the IDEA’s statute of limitations. See Compl. ¶ 49.

On May 9, 2018, Benoit and Collette filed this lawsuit to challenge those portions of the

HOD that denied them relief. See generally id. Benoit and Collette indicated that they were

bringing “this Complaint seeking relief for denial of a Free and Appropriate Education (herein

FAPE)[,]” id. ¶ 1, and stated nine counts for violations of the IDEA that the Hearing Officer was

alleged to have improperly denied relief on at the February 18, 2018 hearing, id. ¶¶ 51–69. In

their request for relief, Benoit and Collette specifically asked that the Court “[f]ind that [the]

Hearing Officer . . . erred” as set forth in the Complaint. Id. ¶ 69.

In August 2018, Benoit and Collette filed two motions for a preliminary injunction,

seeking 1) a “stay put” injunction pursuant to the IDEA requiring that the District fund E.B.’s

3 continued attendance at The Auburn School during the pendency of the case, see Pl.’s First Mot.

Prelim. Inj., ECF No. 7, and 2) an injunction compelling the District to comply with the terms of

the HOD requiring it to fund E.B.’s placement at The Auburn School between February 18, 2018

and the end of the 2017-2018 school year, for a total of $23,672, see Pl.’s Second Mot. Prelim.

Inj. The District filed its opposition to both motions on August 24, 2018, arguing, inter alia, that

the second motion was moot because the District had approved payment to The Auburn School

for the remainder of the 2017-2018 tuition and the payment would be made shortly. See Def.’s

Mem. Opp’n Mot. Prelim. Inj. at 5–6, ECF No. 10. After a hearing on August 27, 2018, the

Court granted the first motion and took the second motion under advisement. See Aug. 27, 2018

Minute Order, No. 1-18-cv-01104-RC.

On September 4, 2018, the District filed a status report where it represented that payment

to The Auburn School for the remainder of the 2017-2018 tuition would be made on September

10. See Def.’s Sept. 4 Status Report, ECF No. 17. On September 11, 2018, the District filed

another status report noting that a check for the payment had issued on September 10. See Def.’s

Sept. 11 Status Report, ECF No. 18. However, just five days later on September 16, 2018,

Benoit and Collette filed their own status report indicating that the District had only paid $10,672

to The Auburn School on September 10, leaving $13,000 unpaid. See Pl.’s Sept. 16 Status

Report, ECF No. 19. The District confirmed as much on September 24, 2018, noting for the first

time that it disputed the tuition amount claimed by Benoit and Collette and that it would not pay

the remaining $13,000. See Def.’s Sept. 24 Status report, ECF No. 20.

On September 26, 2018, Benoit and Collette filed their reply in further support of the

motion for a preliminary injunction. See Pl.’s Reply to Opp’n, ECF No. 21. On October 1,

2018, Benoit and Collette filed a supplemental memorandum to their reply, where they noted that

4 The Auburn School had informed them that failure to pay the $13,000 by October 31 would

trigger a monthly 2.5% late fee and result in their account being sent to collection. See

Supplement to Pl.’s Reply to Opp’n at 1, ECF No. 22.

III. LEGAL STANDARD

“[A] preliminary injunction is an injunction to protect [the movant] from irreparable

injury and to preserve the court's power to render a meaningful decision after a trial on the

merits.” Select Milk Producers, Inc. v. Johanns,

(D.C. Cir. 2005) (quoting

11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedures

§ 2947 (2d ed. 1992)). Preliminary injunction is an “extraordinary remedy,” and one that is

“never awarded as of right.” Winter v. Nat'l Res. Def. Council, Inc.,

(2008).

A plaintiff seeking preliminary injunctive relief “must establish [1] that he is likely to

succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in

the public interest.” Aamer v. Obama,

(D.C. Cir. 2014) (quoting Sherley v.

Sebelius,

(D.C. Cir. 2011)). When seeking such relief, “the movant has the

burden to show that all four factors, taken together, weigh in favor of the injunction.” Abdullah v.

Obama,

(D.C. Cir. 2014) (quoting Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir. 2009)) (internal quotation marks omitted).

IV. ANALYSIS

Benoit and Collette argue that the Court should grant a preliminary injunction compelling

the District to pay for the remainder of E.B.’s 2017-2018 tuition, as required by the HOD, and

that they prevail on all four factors of the preliminary injunction test. See Pl.’s Mem. Supp. at 3.

The District opposes the injunction on several grounds, including standing, prudential mootness,

5 subject matter jurisdiction, and irreparable harm. The Court briefly considers the first two

points, before addressing the District’s arguments on jurisdiction and irreparable harm. The

Court agrees that, as currently pled, it does not have subject matter jurisdiction over the claim for

enforcement of the HOD. And even if the Court had subject matter jurisdiction, Benoit and

Collette have not demonstrated that they will suffer irreparable harm absent an injunction.

A. Standing to Bring an HOD Enforcement Claim

First, the District argues that Benoit and Collette lack standing “to assert a claim on

behalf of the Auburn School.” Def.’s Mem. Opp’n at 3. The Court briefly addresses, and

dismisses, this argument.

A plaintiff bringing any claim in federal court must demonstrate that he has standing to

bring such a claim. As the District points out, in order to demonstrate standing, the “plaintiff

must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of

the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robbins,

(2016). “To establish injury in fact, a Plaintiff must show

that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not conjectural or hypothetical.”’

at 1548 (quoting

Lujan v. Defenders of Wildlife,

(1992)). The District argues that Benoit and

Collette have not suffered a particularized injury because the District owes any tuition payment

to The Auburn School rather than to Benoit and Collette. See Def.’s Mem. Opp’n at 3–4. The

District also argues that the alleged injury is not concrete because it has already agreed to pay for

E.B.’s future tuition, per the Court’s stay-put order. See

Benoit and Collette argue, and the Court agrees, that they are bringing a claim on their

own behalf rather than on behalf of The Auburn School. See Pl.’s Reply at 5. Because Benoit

6 and Collette are ultimately responsible for tuition being paid to the school, and both their

financial situation and E.B.’s attendance at the school could be compromised if payment is not

made pursuant to the HOD, they are bringing a claim for an injury they will likely suffer rather

for an injury The Auburn School might suffer. Both Benoit and Collette’s initial memorandum

in support and their reply brief make clear that the District’s alleged continued noncompliance

will cause an injury to E.B.’s education and to their finances. See Pl.’s Mem. Supp. at 3–4; Pl.’s

Reply at 6. And the District’s clear refusal to pay for the $13,000 still in dispute between the

parties, as indicated in its September 24 Status Report, see Def.’s Sept. 24 Status Report at 2,

negates its argument that any alleged injury is not concrete.

Benoit and Collette are claiming that they will suffer an imminent, concrete and

particularized injury—nonpayment of $13,000 by the October 31, 2018 deadline will trigger a

collections process by The Auburn School and result in harm to them, rather than to the school.

Because that injury can be directly traced to the District’s failure to make tuition payments

pursuant to the HOD and can be remedied by an injunction or declaratory relief, the Court finds

that Benoit and Collette have standing to bring a claim for enforcement of the HOD.

B. Prudential Mootness

Second, the Court briefly addresses the District’s prudential mootness argument. “Even

when a case is not moot in the Article III sense, it will sometimes be ‘so attenuated that

considerations of prudence and comity for coordinate branches of government counsel the court

to stay its hand, and to withhold relief it has the power to grant.’” Gordon v. Holder,

, 81–82 (D.D.C. 2015) (quoting Chamber of Commerce of U.S. v. U.S. Dep't of Energy,

(D.C. Cir. 1980)). The District initially argued in its opposition that the Court

should deny the motion on the basis of prudential mootness, because the District had resolved an

7 internal dispute regarding what part of the budget should be used to comply with the HOD and

was “working to expedite the payment.” Def.’s Mem. Opp’n at 6. However, the District’s

September 24 Status Report makes clear that the payment described in the opposition was only

for part of the amount claimed by Benoit and Collette. See Def.’s Sept. 24 Status Report at 2.

Benoit and Collette seek an injunction to compel the District to pay $23,672 to The Auburn

School. Pl.’s Mot. Prelim. Inj. At 2. The District has agreed to pay—and has paid—$10,672 of

those $23,672, but refuses to pay the remaining $13,000. See Def.’s Sept. 11 Status Report;

Def.’s Sept. 24 Status Report at 2. There is a live dispute as to the remaining $13,000, and the

District’s prudential mootness argument fails. 1

C. Subject Matter Jurisdiction

Third, the District argues that the IDEA does not provide a cause of action to enforce a

favorable HOD and that the Court therefore does not have subject matter jurisdiction over Benoit

and Collette’s request for a preliminary injunction. See Def.’s Mem. Opp’n at 2–3. While the

Court is not willing to categorically state that the IDEA “[s]upports no cause of action” to

enforce a favorable HOD, id. at 2, it agrees that it does not have subject matter jurisdiction over

the claim in this case. The Court first reviews whether the IDEA supports a cause of action to

enforce a HOD, and then whether Benoit and Collette have pled a valid cause of action.

1 The Court notes that, as the District acknowledges in its September 24 Status Report, the parties have disputed the amount the District is required to pay under the HOD for several months. See Def.’s Sept. 24 Status Report at 2 (noting that the District provided its position on the scholarship issue in April 2018). Presumably, the District knew of the ongoing dispute when it filed its opposition, because Benoit and Collette made a request for the full $23,672 in their motion for a preliminary injunction. The District’s prudential mootness argument in its opposition strikes the Court as somewhat disingenuous, particularly in light of the restricted timeline for payment faced by Benoit and Collette.

8 What remedy is available to parents seeking to enforce a HOD under the IDEA is an

unresolved issue that has vexed litigants in this and other circuits for several decades. Both

parties in this case point to the D.C. Circuit’s opinion in B.D. v. District of Columbia,

(D.C. Cir. 2016), the District arguing that it stands for the notion that the IDEA does not

provide a cause of action to enforce a HOD, Def.’s Mem. Opp’n at 2, and Benoit and Collette

arguing that it leaves open the possibility of an implied cause of action in the IDEA, Pl.’s Reply

at 4. In B.D., the D.C. Circuit determined that Section 1415(i)(2)(A) of the IDEA did not

support a cause of action for enforcement of a favorable HOD, joining the Fourth Circuit in a

circuit split on the issue. Compare B.D.,

(finding no cause of action for

enforcement of favorable HOD under § 1415(i)(2)(A) of the IDEA because enforcing party not

“aggrieved by the findings and decision”), and Robinson v. Pinderhughes,

(4th Cir. 1987) (finding similarly with respect to identically worded predecessor to §

1415(i)(2)(A)), with D.E. v. Central Dauphin Sch. Dist.,

, 276–78 (3d Cir. 2014)

(finding that parties seeking enforcement of favorable HOD were aggrieved parties who could

bring claim under § 1415(i)(2)(A)), and Nieves–Márquez v. Puerto Rico,

, 115–17

(1st Cir. 2003) (same).

In B.D., the D.C. Circuit also noted in that its decision did not “necessarily leave[]

families like [the Plaintiffs’] without a viable route to relief in federal court.”

.

Without taking a position on the issue, the opinion pointed out that at least one circuit has found

to provide a cause of action for enforcement of a HOD. See

(citing Mrs. W.

v. Tirozzi,

(2d Cir. 1987)); see also Blackman v. District of Columbia,

, 172 n. 6 (D.C. Cir. 2006) (noting “open question” of whether a § 1983 action can be

brought to enforce FAPE right, and assuming without deciding that appellees’ § 1983 actions

9 were cognizable). And the D.C. Circuit further noted that it was “aware of no decision

specifically foreclosing an IDEA enforcement suit premised on an implied cause of action.” Id.

Here, the District argues that the IDEA does not provide a cause of action and thus that

the Court lacks subject matter jurisdiction. Benoit and Collette retort that the IDEA supports an

implied right of action, because leaving parents unable to enforce a HOD would frustrate the

act’s purpose to ensure that a FAPE be available to disabled children. See Pl.’s Reply at 4. This

argument is essentially the same as the one used by the First and Third Circuits to justify finding

a cause of action in § 1415(i)(2)(A), see D.E., 765 F.3d at 276–78, Nievez-Márquez, 353 F.3d at

115–17, and the Court finds merit in the notion that Congress could not have intended to leave

parents without a right of action to enforce a HOD. 2 Nonetheless, the Court does not decide the

issue because, even assuming that the IDEA supports an implied right of action (or that a HOD

can be enforced through a § 1983 or other action), Benoit and Collette did not seek to enforce the

HOD in their complaint. 3

2 Such a right could take the form of a § 1983 action or an implied right of action under the IDEA. In her concurrence in B.D., Judge Millett also identified a third possible avenue for plaintiffs seeking to enforce a HOD: Under the IDEA, any “matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child” can be the basis of a due process complaint and hearing. In the federal government's view, a school district's failure to comply with a hearing officer's decision is such a matter. Thus, according to the Department of Education, parents facing a lack of compliance might be able to bring another due process complaint to enforce the prior decision and, if necessary, seek judicial review of any denial of needed relief in that proceeding. B.D.,

(Millett, J., concurring) (citation omitted) (quoting

(b)(6) & (f)(1)). 3 While the District did not raise this issue in its opposition, the Court has the power to raise lack of subject matter jurisdiction sua sponte at any point in the litigation. E.g. NetworkIP, LLC v. FCC,

(D.C. Cir. 2009) (‘“It is axiomatic that subject matter jurisdiction may not be waived, and that courts may raise the issue sua sponte.’” (quoting Athens Cmty. Hosp., Inc. v. Schweiker,

, 992 (D.C. Cir. 1982))).

10 A preliminary injunction has a “limited purpose . . . to preserve the trial court’s power to

adjudicate the underlying dispute by maintaining the status quo ante.” Select Milk Producers,

Inc.,

. Accordingly, courts “lack jurisdiction over a motion [for a preliminary

injunction] when it ‘raises issues different from those presented in the complaint.’” Sai v. TSA,

(D.D.C. 2014) (quoting Adair v. England,

(D.D.C.

2002). For jurisdiction to exist over a motion for a preliminary injunction, ‘“the motion must be

closely related to the facts, legal issues, and parties”’ discussed in the complaint. Colley v.

James,

(D.D.C. 2017) (quoting Adair,

). Here, the

same parties are involved in Benoit and Collette’s claim to enforce the HOD as in their claims

challenging portions of the HOD they disagree with. However, the enforcement claim involves

an entirely different set of facts—unlike the complaint, which focuses on E.B.’s education and

the District’s actions before the hearing, the enforcement claim centers around the District’s

actions after the hearing. These facts are not alleged in the complaint. And the legal issues

surrounding the enforcement claim are also very different because, unlike a challenge to the

HOD, an enforcement claim in this circuit cannot be based on § 1415 of the IDEA. The

complaint does not mention § 1983, an implied right of action under the IDEA, or any other legal

theory that would support an enforcement claim.

Because the HOD enforcement claim is not raised in the complaint, and neither are the

facts nor the legal basis for that claim, the Court finds that it does not have subject matter

jurisdiction over the motion for a preliminary injunction. The motion is denied. Benoit and

Collette are granted leave to amend their complaint to add a claim for enforcement of the portion

of the HOD that granted them relief.

11 D. Irreparable Harm

Finally, the District contends that Benoit and Collette cannot prevail on a motion for a

preliminary injunction because they have not demonstrated that they will suffer irreparable harm

if an injunction is not granted. The Court agrees. Even assuming it had subject matter

jurisdiction over Benoit and Collette’s claim, the Court would still deny the motion for a

preliminary injunction because Benoit and Collette have not pointed to a concrete non-economic

harm they will suffer absent an injunction.

“[T]he general rule in this Circuit is ‘that economic harm does not constitute irreparable

injury.’” Safari Club Int’l v. Jewell,

(D.D.C. 2014) (quoting Davis,

; see also Lee v. Christian Coalition of America, Inc.,

(D.D.C. 2001) (“[I]t is well-settled that economic loss alone will rarely constitute irreparable

harm.”). Courts have recognized an exception to that rule when economic loss has such drastic

consequences that it “threatens the very existence of [a] movant’s business[,]” Wisconsin Gas

Co. v. F.E.R.C.,

, 674 (D.C. Cir. 1985), or for an individual, will result in extreme

poverty, see Lee,

. And courts have also recognized an exception when the

claimed economic loss is uncoverable. See Safari Club Int’l,

. In all

circumstances, the irreparable harm alleged must be “concrete and corroborated, not merely

speculative.” E.g. Toxco, Inc. v. Chu,

(D.D.C. 2010).

In their motion on August 22, 2018, Benoit and Collette initially argued that they would

suffer irreparable harm absent an injunction because The Auburn School would not let E.B. start

the new school year if the remainder of the 2017-2018 tuition was not paid. See Pl.’s Mem.

Supp. at 3. They then noted in their reply a month later that “based on Defendant’s

representations that the payment was in process, the school relented and allowed [E.B.] to begin

12 school.” Pl.’s Reply at 5. At that point, Benoit and Collette argued that they faced irreparable

harm because the school “at any time, could inform Plaintiffs that . . . they w[ould] no longer

allow [E.B.] to attend.” Id. at 6. Finally, in their supplemental reply brief on October 1, 2018,

Benoit and Collette explain that The Auburn School has now indicated what will happen if

payment is not made by October 31, 2018: their account will go “through a collection process”

and they will be imposed a monthly 2.5% late fee. Oct. 1, 2018 E-mail, Ex. 1, Suppl. Pl.’s

Reply, ECF No. 22-1.

Benoit and Collette argue that nonpayment to The Auburn School by the October 31

deadline will still constitute irreparable harm because their “credit will be destroyed and assets

leaned or seized.” The Court disagrees. Benoit and Collette do not point to a concrete non-

economic injury: E.B. was able to start studying at The Auburn School, and it appears that

failure to pay the remaining tuition for the 2017-2018 school year will not result in his

withdrawal, but rather in economic penalties to Benoit and Collette. In addition, it is unclear

what consequences will result if Benoit and Collette’s account with The Auburn School goes into

collection on October 31, 2018. Without more evidence, the claim that their credit will be

“destroyed” and “assets leaned or seized” is speculative and insufficient to demonstrate a

concrete irreparable harm that will be suffered absent an injunction.

Without a concrete non-economic injury stemming from the non-payment, the monetary

loss Benoit and Collette allege, both in terms of the initial payment and of growing late fees, is

not sufficient to point to an irreparable injury. See Safari Club Int’l,

. There

is no indication that Benoit and Collette satisfy an exception to the general rule against finding

irreparable injury for strictly monetary loss. Any late fees assessed by The Auburn School as a

result of nonpayment could potentially be recovered against the District as part of a claim for

13 enforcement of the HOD. And Benoit and Collette have not provided any evidence to suggest

that they are so poor the economic injury would rise to the level of irreparable harm. See, e.g.,

Lee,

(finding termination to constitute irreparable harm when plaintiffs

provided evidence that they would face eviction or difficulty feeding themselves and their

dependents without the salary employment provided). If Benoit and Collette add a claim for

enforcement of the HOD to their complaint, they are free to file a renewed request for an

injunction that details how this economic injury would cause irreparable harm, or provides

information concerning renewed threats by The Auburn School to disenroll E.B., but on the

current record the Court finds that they have not alleged an injury on which preliminary

injunctive relief can be granted.

V. CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for a preliminary injunction is DENIED.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: October 24, 2018 RUDOLPH CONTRERAS United States District Judge

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