17-2528-cv (L)
Avaras v. Clarkstown Central School District, et al.

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

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

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

Present:
            JOHN M. WALKER, JR.,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                  Circuit Judges,
_____________________________________

CONNIE AVARAS, on behalf of A.A.,

                                    Plaintiff — Counter-Defendant — Appellee — Cross-Appellant,

                  v.                                                        17-2528-cv (Lead)
                                                                            17-2679-cv (XAP)
CLARKSTOWN CENTRAL SCHOOL DISTRICT, BOARD
OF EDUCATION, for CLARKSTOWN CENTRAL SCHOOL
DISTRICT,

                        Defendants — Counter-Claimants — Counter-Defendants —
                        Appellants — Cross-Appellees.*
_____________________________________

For Plaintiff — Counter-Defendant — Appellee — Cross-Appellant:

                                                  TAI H. PARK, Park Jensen Bennett LLP, New York, NY.


*
    The Clerk of Court is respectfully instructed to amend the caption as set forth above.


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For Defendants — Counter-Claimants — Counter-Defendants — Appellants — Cross-
Appellees:

                                            CAROL A. MELNICK, Jaspan Schlesinger LLP, Garden
                                            City, NY.

          Appeal from a July 17, 2017 judgment of the United States District Court for the Southern

District of New York (Román, J.).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the parties’ appeals are DISMISSED for lack of jurisdiction.

          Plaintiff Connie Avaras (“Avaras”), on behalf of her son, A.A., sued defendants

Clarkstown Central School District and the Board of Education for the District (collectively,

“Clarkstown”) for violations of the Individuals with Disabilities Education Act (“IDEA”), 20

U.S.C. § 1400 et seq., Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181

et seq., Section 504 of the Rehabilitation Act of 1973 (“RA”), 29 U.S.C. § 794, and 42 U.S.C. §

1983 (“Section 1983”). Both parties appeal from various aspects of the July 17, 2017 judgment

of the United States District Court for the Southern District of New York (Román, J.).            We

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

the issues on appeal.

                                            Background

          The IDEA limits its grant of federal funding to those states in which “[a]n individualized

education program [“IEP”] . . . is developed, reviewed, and revised for each child with a disability,”

20 U.S.C. § 1412(a)(4). IEPs are subject to numerous substantive requirements.         See 20 U.S.C.

§§ 1414(d)(1)(A)(i)(I)–(III)).    “Where the IEP is substantively deficient, parents may unilaterally

reject it in favor of sending their child to private school and seek tuition reimbursement from the

State.”     T.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016).            Under



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governing Supreme Court precedent (the “Burlington/Carter test”), reimbursement is required

where: (1) the IEP proposed by the school district was inadequate; (2) the alternative private

placement chosen by the parents was appropriate; and (3) equitable considerations favor

reimbursement. See Frank G. v. Board of Educ. of Hyde Park, 459 F.3d 356, 363–64 (2d Cir.

2006) (citing Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993), and Sch.

Comm. of the Town of Burlington, Mass. v. Dep’t of Educ. of Mass., 471 U.S. 359 (1985)).

       Avaras’s son, A.A., is a special needs student who attended Clarkstown schools. Avaras

rejected the IEPs that Clarkstown administrators prepared for A.A. for the 2012-2013 and 2013-

2014 school years and enrolled her son at the Hawk Meadow Montessori School (“Hawk

Meadow”). On September 27, 2013, Avaras demanded a Due Process Hearing on her claim for

reimbursement from Clarkstown for costs associated with A.A.’s alternative private placement at

Hawk Meadow.       After conducting that hearing, Impartial Hearing Officer (“IHO”) Wendy K.

Brandenburg issued a decision denying Avaras all relief and holding, inter alia, that: (1)

Clarkstown’s IEP for A.A. for the 2012-2013 school year was adequate; and (2) Clarkstown’s IEP

for A.A. for the 2013-2014 school year was inadequate but (3) Hawk Meadow was not an

appropriate alternative placement.   On review of the IHO’s determination, State Review Officer

(“SRO”) Justyn P. Bates affirmed the IHO decision in all respects and denied both parties’ appeals.

       Avaras filed her complaint against Clarkstown in the United States District Court for the

Southern District of New York on March 12, 2015.       In Avaras’s second amended complaint—

the operative complaint in this lawsuit—she alleged multiple violations of the IDEA, seeking

judicial review of the SRO’s decision affirming the IHO’s decision denying tuition reimbursement

and related expenses. Avaras also alleged that the Defendants’ conduct violated Title II of the




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ADA, Section 504 of the RA, and Section 1983. Clarkstown filed its answer on January 29, 2016

and moved for summary judgment.

       On July 17, 2017, the district court issued its Opinion and Order: (1) granting Clarkstown’s

motion for summary judgment dismissing Avaras’s non-IDEA claims brought under the ADA, the

RA, and Section 1983; (2) granting Clarkstown’s motion for summary judgment dismissing

Avaras’s pre-2012 IDEA claims on the grounds that they were time-barred; (3) denying

Clarkstown’s motion for summary judgment as to the legal sufficiency of the 2012-2013 and 2013-

2014 IEPs, holding that those IEPs were inadequate; and (4) holding that Hawk Meadow was an

appropriate alternative placement for A.A.     The district court then remanded to the IHO “the

narrow issue of whether the equities favor reimbursing [Avaras] for the costs associated with

A.A.’s private placement at Hawk Meadow” for the 2012-2013 and 2013-2014 school years.           Sp.

App. 59.   The district court concluded its opinion with the following language: “The Clerk of the

Court is respectfully requested to terminate the pending motions . . . and to close the case.”   Sp.

App. 59.   The district court’s judgment was filed on July 17, 2017.

       On August 14, 2017, Clarkstown timely appealed from the district court’s judgment as to

the IDEA claims pertaining to the 2012-2013 and 2013-2014 school years. On August 24, 2017,

Avaras timely cross-appealed from the district court’s dismissal of the ADA, RA, and Section

1983 claims, as well as from the dismissal of the pre-2012 IDEA claims.

                                            Discussion

       The jurisdiction of the federal courts of appeals is generally limited to final decisions of

the district courts. See 28 U.S.C. § 1291 (“The courts of appeals . . . shall have jurisdiction of

appeals from all final decisions of the district courts”). “‘The finality requirement in § 1291

evinces a legislative judgment that restricting appellate review to final decisions prevents the


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debilitating effect on judicial administration caused by piecemeal appeal disposition of what is, in

practical consequence, but a single controversy.’” Ashmore v. CGI Group, Inc., 860 F.3d 80, 84

(2d Cir. 2017) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 471 (1978)). Given this

rule and its attendant policy concerns, the Second Circuit has held that a final decision is “one that

conclusively determines the pending claims of all the parties to the litigation, leaving nothing for

the court to do but execute its decision.” Mead v. Reliastar Life Ins. Co., 768 F.3d 102, 109 (2d

Cir. 2014) (per curiam) (internal quotation marks and citation omitted). Accordingly, “a district

court’s remand to an administrative agency is not ordinarily appealable.” Crocco v. Xerox Corp.,

137 F.3d 105, 108 (2d Cir. 1998) (citing Perales v. Sullivan, 948 F.2d 1348, 1353 (2d Cir. 1991)).

       We have recognized these limits to our appellate jurisdiction under similar circumstances

to those now before us.     In Mead, the plaintiff applied for two forms of long-term disability

benefits under ERISA: “own occupation” benefits and “any occupation” benefits. 768 F.3d at

104–05.    The ERISA plan administrator denied Mead’s claim, finding that she was ineligible for

“own occupation” benefits. Id. at 105.       After an initial review and remand, the district court

ultimately reversed that ruling but remanded to the plan administrator for further determination of

(1) the amount of “own occupation” benefits to which Mead was entitled and (2) whether Mead

would be eligible for “any occupation” benefits. Id.       The district court then directed the clerk

of court to “close the case.” Id. at 106.   Notwithstanding that direction, the Second Circuit held

that the district court decision was not final because the district court had not conclusively

determined Mead’s claim. Id. at 109–10; see also id. at 111 (“Where, as here, the substance of

the remand order from which the appeal is taken leaves unresolved issues as to liability and

prospective relief, the district court’s entry of a separate judgment and its ‘directive to close the




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case [are] insufficient to vest this Court with jurisdiction under § 1291.’” (quoting Henrietta D. v.

Giuliani, 246 F.3d 176, 181 (2d Cir. 2001))).

        We lack appellate jurisdiction over the district court’s judgment below for the same reasons

referenced by the court in Mead.     The judgment below did not conclusively resolve the issue of

liability pertaining to Avaras’s IDEA claim, nor did it award or deny her any of the relief she

sought on that claim.   Instead, while the district court reversed the state agencies’ determinations

on two of the three prongs of the Burlington/Carter test, it remanded for determination of the third

prong: “whether the equities favor reimbursing Plaintiff for the costs associated with A.A.’s private

placement at Hawk Meadow for the school years (2012-2013 and 2013-2014) when he was denied

a free and appropriate public education by the District.”    Sp. App. 59.    Given the three-pronged

structure of the Burlington/Carter test, Clarkstown’s current appeal to the Second Circuit would

be rendered moot if the district court ultimately held that the equities did not favor reimbursement

and correspondingly rejected Avaras’s claim on that third prong. Accordingly, the district court’s

judgment below is not “one that conclusively determines the pending claims of all the parties to

the litigation,” Mead, 768 F.3d at 109, and we lack jurisdiction to review it.

        The district court’s direction to the clerk of court “to terminate the pending motions . . .

and to close the case,” Sp. App. 59, does not change our analysis.      “[F]inality ultimately turns on

the substance of the district court’s order, such that a district court’s assertion of finality cannot

deliver appellate jurisdiction to review a decision that is not otherwise final for purposes of

§ 1291.” Mead, 768 F.3d at 111 (emphasis added) (quoting Henrietta D., 246 F.3d at 181).             In

Mead, the Second Circuit explained that “[t]he district court’s directive to ‘close the case’ . . . does

not alter the conclusion that the [decision] is not final” because the substance of the district court’s

remand order left liability unresolved. Id. at 111; see also Henrietta D., 246 F.3d at 181 (2d Cir.


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2001) (“With so much left to be done, the district court’s directive to ‘close the case’ is insufficient

to vest this Court with jurisdiction under § 1291.”). Because “[a]ppealability turns on what has

been ordered, not how it has been described,” Henrietta D., 246 F.3d at 181 (citation and

quotations omitted), the district court’s direction to close the case does not alter our determination

that we lack jurisdiction to consider this appeal.

                                           *         *     *

       For the reasons stated above, we DISMISS both parties’ appeals of the district court’s

underlying judgment for lack of jurisdiction.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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