Srabyan v. State of New York

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

NVARD SRABYAN, A.V., a minor, by his

MEMORANDUM & ORDER

parent and guardian ad litem, NVARD

20-CV-3137 (NGG) (RML)

SRABYAN, and M.V., a minor, by her parent

and guardian ad litem, NVARD SRABYAN,

individually and on behalf of all others

similarly situated,

Plaintiffs,

-against-

THE STATE OF NEW YORK, NEW YORK

STATE EDUCATION DEPARTMENT,

ANDREW CUOMO, in his personal capacity

and official capacity as Governor of the State

of New York, SHANNON TAHOE, in her

personal capacity and official capacity as

Interim Commissioner of Education for the

State of New York, BILL DE BLASIO, in his

personal capacity and official capacity as

Mayor of New York City, THE CITY OF NEW

YORK, THE NEW YORK CITY DEPARTMENT

OF EDUCATION, and RICHARD CARRANZA,

in his personal capacity and official capacity as

Chancellor of the New York City Department

of Education,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiffs are two New York City public school students, A.V. and

M.V., and their mother, Nvard Srabyan. Together they bring this

putative class action following a series of Executive Orders issued

by then-Governor Andrew Cuomo in response to the COVID-19

pandemic that directed every school in New York State to close

its doors and shift to remote learning for the remainder of the

2019-2020 school year. According to Plaintiffs, these Orders, and

the blended learning plans for the 2020-2021 school year, repre-

sent “an attack on our liberties [and] unalienable . . . rights for

all students to have an equal opportunity to receive education,”

and “can be construed as an attempt to subvert our democratic

government and move this nation a step closer towards totalitar-

ianism.” (Am. Compl. (Dkt. 27) ¶ 4.)

Plaintiffs’ 70-page, 264-paragraph amended complaint begins

with a quote from Lewis Carroll’s Alice’s Adventures in Wonder-

land. An apt reference, because by the end, one feels as if they’ve

gone through the looking glass. They allege the Executive Orders

violated some 19 federal and state constitutional rights. Under

the U.S. Constitution, they allege that Defendants violated the

Commerce Clause; Contracts Clause; Republican Guarantee

Clause; prohibition on Bills of Attainder and Ex Post Facto laws;

the Fifth Amendment’s Takings Clause; the Sixth, Seventh,

Ninth, Tenth, and Thirteenth Amendments; and the Fourteenth

Amendment’s Procedural Due Process, Substantive Due Process,

Equal Protection, and Privileges and Immunities Clauses. (Id. ¶¶

122-220, 258-64.) For good measure, they tack on several al-

leged violations of the New York State Constitution. (Id. ¶¶ 221-

48.) They seek declaratory and injunctive relief, as well as a gen-

eral request for unspecified damages. (Id. at 69.)

Defendants move to dismiss the complaint on a host of grounds

pursuant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). (See State’s Mot. to Dismiss (Dkt. 39); City’s Mot. to

Dismiss (Dkt. 45).) The court now grants their motions and dis-

misses the amended complaint for the following reasons.

PLAINTIFFS ABANDONED MOST OF THEIR CLAIMS

Defendants moved to dismiss each alleged cause of action for

failure to state a claim. Plaintiffs respond to only three of those

arguments and have, therefore, abandoned the unaddressed

causes of action.1 See McLeod v. Verizon N.Y., Inc., 995 F. Supp.

2d 134, 143 (E.D.N.Y. 2014) (“[A] plaintiff's failure to respond

to contentions raised in a motion to dismiss claims constitute an

abandonment of those claims.”); DoubleLine Cap. LP v. Odebrecht

Fin., Ltd., 323 F. Supp. 3d 393, 449 (S.D.N.Y. 2018).2 Thus, all

but three of the original 19 causes of action are dismissed. The

remaining claims are for alleged violations under the Equal Pro-

tection Clause, the Commerce Clause, and the Contracts Clause.

PLAINTIFFS’ REQUEST FOR DECLARATORY AND

INJUNCTIVE RELIEF IS MOOT

“A case becomes moot—and therefore no longer a ‘Case’ or ‘Con-

troversy’ for purposes of Article III—when the issues presented

are no longer ‘live’ or the parties lack a legally cognizable interest

in the outcome.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013). Here, New York (City and State) has reopened its

schools; Governor Cuomo rescinded the declaration of a disaster

emergency and the challenged Executive Orders, see N.Y. Exec.

Order No. 210, N.Y. Comp. Codes R. & Regs. tit. 9, § 8.210

(2021); and the New York Legislature curtailed the Governor’s

emergency powers to reissue COVID-19 restrictions, see 2021

N.Y. Sess. Laws ch. 71 § 4. In light of these developments, the

Second Circuit in a series of summary orders has held that similar

challenges to previous COVID-19-related Executive Orders were

moot. See Nat’l Rifle Ass’n of Am. v. Hochul, No. 20-3187-CV, 2021

WL 5313713, at *1 (2d Cir. Nov. 16, 2021); Dark Storm Indus.

LLC v. Hochul, No. 20-2725-CV, 2021 WL 4538640, at *1 (2d Cir.

Oct. 5, 2021); 36 Apartment Assocs., LLC v. Cuomo, 860 F. App’x

1 As the State points out, Plaintiffs appear to have explicitly abandoned

these unaddressed claims. (See Pls.’ Opp’n (Dkt. 41) at 21) (“[I]t is respect-

fully submitted that plaintiffs are indeed entitled to proceed on their Equal

Protection, Commerce Clause and Contract Clause claims.”).)

2 When quoting cases, and unless otherwise noted, all citations and quota-

tion marks are omitted, and all alterations are adopted.

215, 216-17 (2d Cir. 2021); see also Conn. Citizens Def. League,

Inc. v. Lamont, 6 F.4th 439, 446 (2d Cir. 2021). So too have sev-

eral district courts in the school-closure context. See, e.g., Lebovits

v. Cuomo, No. 20-CV-1284 (GLS) (DJS), 2022 WL 344269, at *3

(N.D.N.Y. Feb. 4, 2022); Lewis v. Cuomo, No. 20-CV-6316 (CJS),

2021 WL 3163238, at *7-8 (W.D.N.Y. July 27, 2021); Aviles v.

Blasio, No. 20-CV-9829 (PGG), 2021 WL 796033, at *16-17

(S.D.N.Y. Mar. 2, 2021). This court now follows suit and dis-

misses Plaintiffs’ claims for declaratory and injunctive relief as

moot.

Because Plaintiffs also seek damages, however, their remaining

claims survive. See Dean v. Blumenthal, 577 F.3d 60, 66 & n.3 (2d

Cir. 2009). Barely. See Tawwab v. Metz, 554 F.2d 22, 24 n.4 (2d

Cir. 1977) (holding that the complaint was moot despite “a gen-

eral demand for damages,” because “[a]ny award of damages on

the facts of this case, as alleged in the complaint, would be so

remote and speculative that it could not stand”).

PLAINTIFFS LACK STANDING

The remaining claims for damages are dismissed because Plain-

tiffs lack standing to assert them.

A. Legal Standard

“The law of Article III standing . . . serves to prevent the judicial

process from being used to usurp the powers of the political

branches.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408

(2013). It “focuses on the party seeking to get his complaint be-

fore a federal court and not on the issues he wishes to have

adjudicated.” Valley Forge Christian Coll. v. Ams. United for Sepa-

ration of Church and State, Inc., 454 U.S. 464, 484 (1982).

To establish standing, the plaintiff must have (1) suffered an in-

jury in fact, (2) that is fairly traceable to the challenged conduct

of the defendant, and (3) that is likely to be redressed by a favor-

able judicial decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-

61 (1992). “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 con-

jectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330,

339 (2016) (quoting Lujan, 504 U.S. at 560). A “particularized”

injury “affect[s] the plaintiff in a personal and individual way.”

Id. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually

exist”; it must be “real,” and not “abstract.” Id. at 340.

“The plaintiff, as the party invoking federal jurisdiction, bears the

burden of establishing these elements,” and, “at the pleading

stage, the plaintiff must ‘clearly . . . allege facts demonstrating’

each element.” Id. at 338 (quoting Warth v. Seldin, 422 U.S. 490,

518 (1975)). “That a suit may be a class action . . . adds nothing

to the question of standing, for even named plaintiffs who repre-

sent a class ‘must allege and show that they personally have been

injured, not that injury has been suffered by other, unidentified

members of the class to which they belong.’” Id. at 338 n.6 (quot-

ing Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 40 n.20

(1976)).

B. Application

Plaintiffs fail to establish injury in fact, “the first and foremost of

standing’s three elements,” because the alleged injuries are nei-

ther particularized nor concrete. See id. at 338. Plaintiffs allege

that A.V. and M.V. go to public school, and Srabyan is their

mother. (See Am. Compl. ¶¶ 33-35.) That’s it. Rather than plead

facts to satisfy the standing elements and demonstrate how De-

fendants injured them personally, Plaintiffs use their 70-page

amended complaint to grumble about the state of the nation’s po-

litical discourse, the New York City Department of Education’s

curricula, and how they perceive the Executive Orders affect

“parents” and “students” generally.

In searching for clues as to just what injuries Plaintiffs seek to

allege in their freewheeling complaint, the court turns to their

memorandum in opposition to Defendants’ motions to dismiss,

in which they summarize the “main issue[s]” as (1) “whether the

defendants . . . have created an environment of ‘separate but

equal’ education,” which “discriminates against minorities and

those of lesser financial means”; (2) “the need for relief . . . to the

extent that defendants . . . have interfered with interstate com-

merce”; and (3) “the need for relief . . . as a result of the fact that

the State of New York is currently a dictatorship.” (Pls.’ Opp’n at

1-2.) They further contend that even though the Executive Or-

ders have been rescinded and schools reopened, “the harm has

already been done,” because blended learning plans also “fail[]

to prepare students to exercise meaningfully their Fifteenth

Amendment right to vote, their First Amendment rights to speak,

to petition their governments and to participate in democratic

processes, and their Sixth and Seventh Amendment rights to

serve on a jury and be judged by a jury of their peers.” (Id.)

Based on Plaintiffs’ amended complaint and opposition papers,

the court can glean three possible injuries: two to the students,

A.V. and M.V., and one to their mother, Srabyan. None of which

satisfy Article III standing.

1. A.V. and M.V. Lack Standing

The two possible injuries to A.V. and M.V. are (1) a “separate but

equal” learning environment that discriminates against minori-

ties and those of lesser financial means; and (2) a failure to

prepare them to exercise various constitutional rights. The first

fails on particularity; the second on concreteness.

To support the first possible injury, that the Executive Orders and

subsequent blended learning plan discriminate against minori-

ties and those of lesser means, Plaintiffs allege:

Plaintiffs and the Class have been deprived of their rights to,

inter alia, equal treatment regardless of their race, ethnic

background, religion, or sex, financial background, citizen-

ship status, and have been deprived of right to educational

services to students without disabilities but in need of extra

assistance, educational services to students with disabilities,

and fair and equal administration of: a) student treatment;

b) student services; c) counseling and guidance; d) disci-

pline; e) classroom assignment; f) grading; g) vocational

education; h) recreation; i) physical education; and j) athlet-

ics.

(Am. Compl. ¶ 12.) But the complaint says nothing about Plain-

tiffs’ race, background, religion, citizenship, or financial status. It

says only that they are English Language Learners, and even that

is only half-right: A.V. is (for now), but M.V. is not (she tested

out in 2017 and took an Advanced Placement course in English

Language in Composition in the 2019-2020 school year). (See

Decl. of Henry Chou in Supp. of City’s Mot. to Dismiss (“Chou

Decl.”) (Dkt. 46) ¶¶ 5-8.) Accordingly, this alleged “separate but

equal” injury is not particularized as to Plaintiffs, because it fails

to allege how the Executive Orders or blended learning plans “af-

fect the[m] . . . in a personal and individual way.” See Spokeo,

Inc., 578 U.S. at 339.

To support the second possible injury, that the blended learning

plan fails to prepare students to exercise various constitutional

rights, Plaintiffs allege in essence that this plan fails to provide

A.V. and M.V. with an adequate education. (See, e.g., Am. Compl.

¶ 20 (“[Defendants] have failed to provide an adequate plan for

the named Plaintiffs and tens of thousands of other students in

the City and State of New York for an education that is adequate

to prepare them to function productively as civic participants . . .

.”); id. ¶ 96 (“Students with special education needs and/or need

for extra assistance including Plaintiffs and the Class, and who

attend schools in the New York Public School system do not re-

ceive adequate instruction in history, American government and

civics or adequate extracurricular experiences geared to their

special learning needs that will prepare them to function produc-

tively as civic participants as adults.”).) There is little more to say

about this alleged injury other than it fails to satisfy the concrete-

ness prong, because it fails to allege an injury that actually exists,

that is real, and not abstract. See Spokeo, Inc., 578 U.S. at 340.

Put simply, Plaintiffs’ displeasure with the New York City Public

Schools curricula is not a concrete injury arising out of remote

learning that satisfies Article III standing.3

2. Srabyan Lacks Standing

The alleged injury as to Srabyan involves some vague economic

harm to parents who must stay home to supervise their children’s

remote learning. Vague, because the complaint says nothing

about any hardship, harm, or annoyance that Srabyan experi-

enced as a result of remote or blended learning. Plaintiffs fail

even to allege that Srabyan herself stayed home to supervise A.V.

and M.V. Rather, the complaint refers to effects on “parents” gen-

erally and ignores any effect on Srabyan personally. (See, e.g.,

Am. Compl. ¶¶ 13, 27-28, 110, 181.) Thus, this alleged injury is

not particularized as to Plaintiffs, and they lack standing to bring

a claim based on it.

3 Raising further doubt as to whether Plaintiffs are appropriately adverse

parties to bring this suit, when given the option of remote learning or

blended learning to begin the 2020-2021 school year, Srabyan elected to

have M.V. receive 100% remote learning and A.V. receive blended learn-

ing. (See Chou Decl.¶ 10.) See Harty v. W. Point Realty, Inc., No. 20-2672-

CV, 2022 WL 815685, at *2 (2d Cir. Mar. 18, 2022) (“[A] Rule 12(b)(1)

motion challenging subject matter jurisdiction may be either facial, i.e.,

based solely on the allegations of the complaint and exhibits attached to it,

or fact-based, i.e., based on evidence beyond the pleadings.”).

PLAINTIFFS FAIL TO STATE A CLAIM

Even if Plaintiffs alleged facts sufficient to demonstrate Article III

standing, their complaint would still fail. The court disposes of

the three remaining claims pursuant to Defendants’ motions to

dismiss for a failure to state a claim under Rule 12(b)(6).4

First, the Commerce Clause claim fails because Plaintiffs do not

come close to adequately pleading that the Executive Orders “in-

terfered with the natural functioning of the interstate market

either through prohibition or through burdensome regulation.”

McBurney v. Young, 569 U.S. 221, 235 (2013); see Alliance of

Auto. Mfrs., Inc. v. Currey, 610 F. App’x 10, 12 (2d Cir. 2015)

(“State legislation runs afoul of the negative command of the

Commerce Clause only where it: ‘(1) clearly discriminates

against interstate commerce in favor of intrastate commerce,

(2) imposes a burden on interstate commerce incommensurate

with the local benefits secured, or (3) has the practical effect of

extraterritorial control of commerce occurring entirely outside

the boundaries of the state in question.’” (quoting Selevan v. N.Y.

Thruway Auth., 584 F.3d 82, 90 (2d Cir. 2009))).

Second, the Contracts Clause claim fails for the simple reason

that Plaintiffs fail to “identify[] the precise contractual right that

has been impaired.” Keystone Bituminous Coal Ass’n v. DeBenedic-

tis, 480 U.S. 470, 504 (1987). Indeed, Plaintiffs identify no

personally held contract whatsoever. See All. of Auto. Mfrs., Inc.,

610 F. App’x at 13 (“To state a claim for violation of the Con-

tracts Clause, a complaint must allege sufficient facts to

demonstrate that a state law has ‘operated as a substantial im-

pairment of a contractual relationship.’” (quoting Gen. Motors

Corp. v. Romein, 503 U.S. 181, 186 (1992))).

4 Plaintiffs’ complaint also runs afoul of Federal Rule Civil Procedure 8,

offering yet another avenue for dismissal. (See State’s Mot. to Dismiss at

12-14; City’s Mot. to Dismiss at 12-14; State’s Reply (Dkt. 42) at 5-6.)

Third, and finally, the Equal Protection Clause claim fails be-

cause, as discussed, Plaintiffs allege neither that they are part of

an identifiable or suspect class, nor that they are treated differ-

ently than any other similarly situated New Yorkers. Even if they

did, it is clear that the best Plaintiffs could hope for is rational

basis review of the Executive Orders; a hurdle that these Or-

ders—issued in response to the COVID-19 pandemic—easily

clear. Accordingly, Plaintiffs’ claims, even if they satisfied Article

III standing, would be dismissed under Rule 12(b)(6) for failure

to state a claim.

CONCLUSION

Defendants’ [39] [44] motions to dismiss are GRANTED, and

Plaintiffs’ [27] Amended Complaint is DISMISSED with preju-

dice. The Clerk of Court is respectfully directed to close this case.

SO ORDERED.

Dated: Brooklyn, New York

March 23, 2022

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge