Petition for Writ of Certiorari — Rita C. Simpson-Vlach, et vir, on Behalf of A. S. and M. S., et al., Petitioners v. Michigan Department of Education, et al.

No. _______

In The

Supreme Court of the United States

RITA C. SIMPSON-VLACH, ET AL.,

Petitioners,

v.

MICHIGAN DEPARTMENT OF EDUCATION, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

APPENDIX

Rory J. Bellantoni

Brain Injury Rights Group, Ltd.

300 East 95th Street, Suite 130

New York, New York 10128

rory@pabilaw.org

Counsel of Record for Petitioners

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

i

TABLE OF CONTENTS

Opinion of the United States Court of Appeals

for the Sixth Circuit, filed 5/10/23 ........................... A1

Opinion and Order of the United States District

Court for the Eastern District of Michigan,

Southern Division, filed July 22, 2022 .................. A23

Order on Rehearing of the United States Court

of Appeals for the Sixth Circuit,

filed June 12, 2023 ................................................. A75

A1

FILED: May 10, 2023

Case No. 22-1724

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA C. SIMPSON-VLACH and ALAN SIMPSONVLACH on behalf of A.S. and M.S.; KATHY BISHOP

and CHRISTOPHER PLACE on behalf of C.P. and

H.P.,

Plaintiffs-Appellants,

v.

MICHIGAN DEPARTMENT OF EDUCATION;

ANN ARBOR PUBLIC SCHOOLS; WASHTENAW

INTERMEDIATE SCHOOL DISTRICT; DR.

JEANICE KERR SWIFT; DR. MARIANNE

FIDISHIN; SCOTT A. MENZEL; NAOMI NORMAN;

MICHAEL F. RICE,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF MICHIGAN

OPINION

Before: COLE, GIBBONS, and READLER, Circuit

Judges.

COLE, Circuit Judge. Rita Simpson-Vlach, Alan

Simpson-Vlach, Kathy Bishop, and Christopher

Place (collectively, “plaintiffs”) are parents of

children A.S., M.S., C.P., and H.P, all of whom

A2

qualify as students with disabilities under the

Individuals with Disabilities Education Act

(“IDEA”). Plaintiffs allege that the defendants, local

and state education agencies and individuals

employed by them, violated the IDEA, the

Americans with Disabilities Act (“ADA”), and several

related state laws when schools switched to remote

instruction in March 2020 due to the COVID-19

pandemic. Plaintiffs also allege that the individual

defendants violated the Racketeer Influenced and

Corrupt Organizations Act (“RICO”) due to their

allegedly false assurances made to ensure receipt of

IDEA funds that were then misspent. Because

plaintiffs have failed to allege necessary elements of

constitutional standing that would permit the

requested relief, we affirm.1

I. BACKGROUND

In March 2020, Ann Arbor Public Schools closed

their doors and transitioned students to remote

learning due to COVID-19. At the time of this

transition, Ann Arbor Public Schools students A.S.,

M.S., C.P., and H.P. each had an individualized

education program (“IEP”) that outlined the studentspecific goals and services necessary to ensure that

each student received a free appropriate public

1 The Supreme Court recently issued its decision in Luna Perez

v. Sturgis Public Schools, 143 S. Ct. 859, 865 (2023). The Court

explained that the IDEA’s exhaustion requirement did not bar

Perez’s suit seeking compensatory damages under the ADA. Id.

We decide the present case on standing principles, not

exhaustion requirements, and the plaintiffs did not request

compensatory damages under the ADA in their complaint.

Therefore, Luna Perez’s holding does not impact our decision in

this matter.

A3

education (“FAPE”) as mandated by the IDEA. See

20 U.S.C. §§ 1400(d), 1401(14). Notably, none of the

students’ IEPs in place at the time of the transition

to remote learning specified whether the required

services needed to be provided in-person. As with all

other students in the district, A.S., M.S., and C.P.

received remote instruction through May 2021, when

schools re-opened for hybrid learning. H.P.

participated in remote learning until January 2021

when her mother placed her in a private school. The

2021–2022 school year proceeded primarily inperson, though Ann Arbor Public Schools delayed

the return to in-person learning after winter break

for one week in January 2022. Since then, there has

been no indication that another temporary or

extended closure or period of remote instruction has

occurred or will occur.

In June 2021, plaintiffs filed a putative class

action complaint against the Michigan Department

of Education (“MDE”), Washtenaw Intermediate

School District (“WISD”), Ann Arbor Public Schools

(“AAPS”), AAPS’s superintendent Dr. Jeanice Swift,

AAPS’s Executive Director of Student Intervention

and Support Services Dr. Marianne Fidishin,

WISD’s former interim superintendent Scott Menzel,

WISD’s current interim superintendent Naomi

Norman, and MDE’s state superintendent Dr.

Michael F. Rice. AAPS, Swift, and Fidishin are

collectively referred to as the “AAPS defendants”;

WISD, Menzel, and Norman are collectively referred

to as the “WISD defendants”; and the MDE and Rice

are collectively referred to as the “MDE defendants.”

Plaintiffs claim that the transition to remote

learning in March 2020 effected a change in

placement for students with IEPs, therefore

A4

triggering several of the IDEA’s procedural

protections. From this premise, plaintiffs’ original

complaint asserted eight separate claims. The

remaining claims2 on appeal include:

• Count 1: MDE, WISD, and AAPS engaged in

systemic violations of the IDEA when they

transitioned to remote learning in March 2020

by failing to (1) provide parents with prior

written notice of the change in educational

placement, (2) provide parents with meaningful

participation in decisions regarding changes to

their child’s IEP, (3) reconvene IEP meetings

prior to or shortly following the change in

placement, and (4) ensure that students with

IEPs could access a FAPE on the same level as

their peers without disabilities.

• Count 2: AAPS (and possibly WISD) violated

the Michigan Administrative Rules for Special

Education (“MARSE”).3

• Count 4: AAPS and MDE violated Title II of

the ADA.

2 Plaintiffs’ initial complaint also included Count 3: violation of

Section 504 of the Rehabilitation Act, Count 6: violation of

plaintiffs’ Fourteenth Amendment Equal Protection rights

under § 1983, and Count 8: conspiracy to violate RICO.

Plaintiffs voluntarily dismissed Counts 3, 6, and 8 as to all

defendants and Counts 2 and 5 as to the state defendants only.

In the complaint, this count alleges that “defendants”

generally failed to comply with MARSE, and later identifies

AAPS and MDE specifically. As noted, Plaintiffs dismissed

Count 2 against the state defendants, but made no mention of

WISD.

3

A5

• Count 5: AAPS violated the Michigan Persons

with Disabilities Civil Rights Act.

• Count 7: Swift, Fidishin, Menzel, Norman, and

Rice violated RICO.

Plaintiffs assert that they meet the requirements

for a declaratory and injunctive relief class under

Federal Rules of Civil Procedure 23(a) and (b)(2).

But while the plaintiffs sought preliminary class

certification in their motion for a preliminary

injunction that was then held in abeyance, no

separate motion for class certification has been filed.

So no class was ever certified.

Plaintiffs request various forms of relief,

including that the court (1) assert jurisdiction; (2)

certify a class action; (3) issue several declaratory

judgments, including one indicating that the “class

members’ pendency placement is in-person

instruction and services”; and (4) appoint two Special

Monitors: (i) one to “oversee the completion of

Independent Education Evaluations” for all class

members and to “make expert recommendations to

the Court regarding compensatory education or

pendency payments for the class members to address

any regressions and/or loss of competencies[,]” and

(ii) another to “oversee the completion of an

independent audit of defendants’ expenditures of

their IDEA Part B Funds from March of 2020 to the

present” and ensure that any improperly spent funds

“are reimbursed to a monitored account to be spent

only upon review and approval by the RICO Special

Monitor.” (Compl., R. 1, PageID 41–43.)

A6

While the federal litigation was pending,

plaintiffs “filed four due process complaints with the

State of Michigan Office of Administrative Hearings

and Rules against . . . AAPS,” one for each student

named in the complaint. (Joint Update on Admin.

Proceedings, R. 54, PageID 1427.) These

administrative due process complaints similarly

asserted that the transition to remote learning in

March 2020 led to procedural violations of the IDEA

and caused harm to students. In November 2021,

plaintiffs reached settlement agreements in the

administrative proceedings that acknowledged “(1)

that the dispute[s] which gave rise to the Due

Process Complaint[s] ha[ve] been resolved; and (2)

that the Due Process Complaint[s] should be

dismissed with prejudice.” (Settlement Agreements,

R. 54-2, PageID 1435, 1441, 1447, 1452.) Regarding

additional claims, all settlement agreements state

that they do not:

[S]et forth any understanding or settlement of

any of the Student’s allegations regarding

procedural and systemic violations under IDEA,

discrimination under the Americans with

Disabilities Act, the Michigan Persons with

Disabilities Civil Rights Act, Section 504 of the

Rehabilitation Act, or 42 U.S.C. § 1983, or

violations of the Racketeer Influenced and

Corrupt Organizations Act (“RICO”).

(Id. at 1436, 1442, 1448, 1453.) Plaintiffs’ attorneys

acknowledged that these agreements “achieved a full

and complete settlement of all the IDEA issues,

[and] all of the FAPE” issues faced by the named

plaintiffs but argued that the putative class

A7

members were owed the same relief. (Hr’g Tr., R. 62,

PageID 1777–78, 1800–01, 1804, 1818.)

The AAPS, WISD and MDE defendants each

filed separate motions to dismiss the complaint. In

response to AAPS’s temporary delay in returning to

in-person instruction in January 2022, plaintiffs

filed a motion for a temporary restraining order. The

district court held a hearing on these motions,

during which the district court expressed concern

about plaintiffs’ Article III standing and about

several elements of the RICO claims, including

whether the alleged injury was one to business or

property or was too derivative to permit plaintiffs to

pursue their RICO claim. Following the hearing, the

district court requested supplemental briefing on

standing and mootness.

The district court then dismissed the case

without prejudice, determining that plaintiffs failed

to allege harm sufficient to warrant prospective

relief for Counts 1, 2, 4, and 5 and failed to allege

causation and redressability with respect to the

RICO claim. Plaintiffs appeal.

II. ANALYSIS

A. Standing

We review issues of standing de novo. Cleveland

Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513,

523 (6th Cir. 2001). “To establish Article III

standing, a plaintiff must show (1) an ‘injury in fact,’

(2) a sufficient ‘causal connection between the injury

and the conduct complained of,’ and (3) a

‘likel[ihood]’ that the injury ‘will be redressed by a

favorable decision.’” Susan B. Anthony List v.

A8

Driehaus, 573 U.S. 149, 157–58 (2014) (alteration in

original) (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 560–61 (1992)). Like any other essential

element of a claim, standing must be pleaded with

particularity and conclusory allegations will not

suffice. Binno v. Am. Bar Ass’n, 826 F.3d 338, 344

(6th Cir. 2016).

1. Counts 1, 2, 4, and 5

The district court determined that the plaintiffs

lacked standing with respect to Counts 1, 2, 4, and 5

because they failed to allege an injury that permitted

their requested relief. An alleged injury must be

concrete, particularized, actual and imminent; it can

be neither conjectural nor hypothetical. Gerber v.

Herskovitz, 14 F.4th 500, 505–06 (6th Cir. 2021)

(quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 339

(2016)). To be sufficiently particularized, “an injury

‘must affect the plaintiff in a personal and individual

way,’ not in a general manner that affects the entire

citizenry.” Id. at 506 (internal citations omitted)

(quoting Lujan, 504 U.S. at 560 n.1). But the injury

need not have occurred in the past: “The threat of

future harm can satisfy this requirement as long as

there is a ‘substantial risk’ that the harm will occur.”

Kanuszewski v. Mich. Dep’t of Health & Hum. Servs.,

927 F.3d 396, 405 (6th Cir. 2019) (quoting Clapper v.

Amnesty Int’l, 568 U.S. 398, 414 n.5 (2013)); see also

Susan B. Anthony List, 573 U.S. at 158 (explaining

that a future injury must be “certainly impending” or

present a “substantial risk” of occurrence (quoting

Clapper, 568 U.S. at 414 n.5)). Under certain

circumstances, an allegation of past injury

accompanied by “continuing, present adverse effects”

A9

may also permit a plaintiff to seek declaratory or

injunctive relief. Sullivan v. Benningfield, 920 F.3d

401, 408 (6th Cir. 2019) (quoting O’Shea v. Littleton,

414 U.S. 488, 495–96 (1974)).

Importantly, plaintiffs must establish standing

for each form of relief they seek, and the type of

harm alleged impacts the available relief.

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208

(2021); Kanuszewski, 927 F.3d at 406. While

allegations of past injury permit a plaintiff to seek

compensatory relief, allegations of ongoing or future

harm permit a plaintiff to seek declaratory or

injunctive relief. Kanuszewski, 927 F.3d at 406; see

also City of Los Angeles v. Lyons, 461 U.S. 95, 106

(1983).

Here, the complaint repeatedly requests

declaratory and injunctive relief. Thus, plaintiffs

must plead either a future injury that is “certainly

impending” or presents a “substantial risk” of

occurrence,” Susan B. Anthony List, 573 U.S. at 158,

or a past injury that presents “continuing, present

adverse effects,” Sullivan, 920 F.3d at 408 (quoting

O’Shea, 414 U.S. at 495–96).

Beginning with the latter, plaintiffs fail to allege

in Counts 1, 2, 4, or 5 continuing harm stemming

from the switch to remote instruction in March 2020.

Counts 1 and 2 allege that plaintiffs suffered

“regressions in skills and loss of competencies

regarding the goals and objectives outlined in their

IEPs.” (Compl., R. 1, PageID 22, ¶¶ 152, 156.) But

the complaint does not indicate that these injuries

are ongoing. Counts 4 and 5 allege more generally

that plaintiffs experienced “harm as set forth above.”

(Id. at PageID 27, ¶¶ 184, 190.) Assuming these

statements also refer to regressions in skills and loss

A10

of competencies, there is similarly no mention of

ongoing impact. Therefore, plaintiffs cannot pursue

declaratory or injunctive relief on these grounds.

Plaintiffs also argue that they have sufficiently

pleaded risk of future harm because future school

closures are likely based on the “continuing

uncertainty of COVID-19 and the ever-present

possibility of new variants.” (Appellant Br. 7.) But

an examination of two seminal Supreme Court cases

explains why this allegation is too general to

establish that the threatened injury is “certainly

impending” rather than merely possible. Clapper,

568 U.S. at 409.

First, in Lyons, the Supreme Court concluded

that Lyons did not show a sufficiently substantial

risk of future harm by relying on past experience.

461 U.S. at 105–07. The Court explained that

Lyons’s fear of being subjected to unconstitutional

practices by police officers in the future was too

conjectural to establish standing to seek injunctive

relief, as Lyons’s claim turned on whether he would

again be stopped for violating a traffic law and

subject to the same use of force. Id. Plaintiffs’ claims

of future harm in the present case fare no better

than Lyons’s did. Here, 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. The likelihood of such a

sequence of events is no more concrete than the

likelihood of the events the Court deemed too

speculative in Lyons.

A11

Second, in Clapper, the Supreme Court

determined that the plaintiffs’ alleged future injuries

were too “highly attenuated” to be “certainly

impending.” 568 U.S. at 410–11 (outlining the fivestep sequence of events necessary to cause an

actionable injury). The sequence outlined in the

preceding paragraph regarding these plaintiffs’

alleged injuries is comparably attenuated. Even if

the plaintiffs could establish that the ever-present,

ever-changing COVID-19 circumstances create a

likelihood of future school closures, they fail to allege

that these future transitions to remote instruction

would lead to the same alleged procedural violations

of the IDEA or the same regressions in skills and

competencies allegedly caused by the change to

remote instruction in March 2020. Plaintiffs’ case is

difficult to distinguish from Lyons and Clapper, so

they too have not claimed an injury permitting

injunctive or declaratory relief.

Plaintiffs then attempt to side-step the future

injury requirement by claiming that their request for

a “declaratory judgment that the class members’

pendency placement is in-person” is not contingent

upon a future school closure because all students

must have a current placement. (Compl., R. 1,

PageID 41.) This argument stems from an IDEA

provision, sometimes referred to as the “stay-put”

provision, guaranteeing that, “during the pendency

of any proceedings conducted pursuant to this

section,” students “shall remain in the then-current

educational placement of the child.” 20 U.S.C. §

1415(j); see Honig v. Doe, 484 U.S. 305, 308 (1988)

(discussing what is now § 1415(j)). In Honig, the

Supreme Court acknowledged that the stay-put

provision is triggered when a “change in placement”

A12

exceeds ten days. 484 U.S. at 325 n.8. Honig did not

expressly define a “change in placement,” but rather

accepted

the

Department

of

Education’s

interpretation that a school’s decision to suspend a

student for more than ten days qualified as one. Id.

Reading the statute and Honig together, students

are to remain in their current educational placement

during the pendency of litigation under the IDEA

and may invoke the stay-put provision when there is

a change in placement that will last more than ten

days.

The problem here is that plaintiffs are not

asking the court to invoke the stay-put provision

based on the current litigation or a possible change

in placement that will last longer than ten days.

Rather, they ask the court to define the students’

current placement so that students are guaranteed

in-person instruction “[i]f and when the stay-put

provision is triggered.” (Appellant Br. 16.) Plaintiffs

acknowledge as much when they describe the

requested relief as a way to “establish their

educational placement.” (Id.) But a court does not

define a student’s educational placement when it

issues a stay-put order. Instead, a “student’s current

pendency placement is the educational placement in

the student’s last agreed-upon IEP.” (Id.) See also 20

U.S.C. § 1415(j); N.W. ex rel. J.W. v. Boone Cnty. Bd.

of Educ., 763 F.3d 611, 617–18 (6th Cir. 2014)

(interpreting “placement” in

light

of

the

Department of Education’s definition found at 34

C.F.R. § 300.116). Here, the plaintiffs ask the court

to determine in the first instance which, if any,

students’ IEPs require in-person services, a decision

a court is not in the position to make. Cf. 34 C.F.R §

300.116 (explaining that a child’s placement is

A13

determined by “a group of persons, including the

parents, and other persons knowledgeable about the

child, the meaning of the evaluation data, and the

placement options”). So, plaintiffs’ argument that

this form of declaratory relief is not contingent upon

future closures is neither persuasive nor sufficient to

establish standing to proceed.

Further, it is not clear that the initial March

2020 closure would have implicated the stay-put

provision. Other courts have determined that

changes that affect students with disabilities and

students without disabilities alike do not amount to

a change in placement and do not activate the stayput provision. See N.D. v. Haw. Dep’t of Educ., 600

F.3d 1104, 1116–17 (9th Cir. 2010) (“To allow the

stay-put provisions to apply [to a change that

affected all students] would be essentially to give the

parents of [children with disabilities] veto power

over a state’s decisions regarding the management of

its schools.”). So, even were a future closure likely, it

is not clear that the closure would be considered a

change of placement under the IDEA.

Additionally, plaintiffs argue that they also seek

compensatory relief in the form of the appointment

of a Special Monitor to make recommendations

regarding compensatory education or pendency

payments for putative class members based on

regressions in skills resulting from the switch to

remote learning in March 2020.4 Plaintiffs argue

4 An award of compensatory education is an equitable form of

relief available under the IDEA. See 20 U.S.C. §

1415(i)(2)(C)(iii); see also Bd. of Educ. of Fayette Cnty. v. L.M.,

478 F.3d 307, 315–18 (6th Cir. 2007). We read pendency

payments to relate to the provision of the IDEA that authorizes

reimbursement for costs associated with a unilateral private-

A14

that such “compensatory relief” depends on their

reportedly successfully alleged past injury.

But the named plaintiffs already received

relief—compensatory and otherwise—through their

administrative settlement agreements. Plaintiffs

attempt to distinguish between the systemic

violations pleaded in the putative class action and

the individual violations pursued through the

administrative remedy, highlighting that the

settlement agreements specifically explained that

they did “not set forth any understanding or

settlement of any of the Student’s allegations

regarding procedural and systemic violations.”

(Reply Br. 4 (quoting Settlement Agreements, R. 542, PageID 1436).) But plaintiffs fail to explain how

their requested relief differs from what they already

received, or, proceeding on the assumption that this

is a putative class action, how the case can proceed

based on a hypothetical class of which the named

representatives are no longer a part and about which

the district court has made no findings as to class

certification.

“A

potential

class

representative

must

demonstrate individual standing vis-[à]-vis the

defendant; he cannot acquire such standing merely

by virtue of bringing a class action.” Fallick v.

Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir.

school placement of a child who was denied a FAPE. See 20

U.S.C. § 1412(a)(10)(C); Forest Grove Sch. Dist. v. T.A., 557

U.S. 230, 239–40 (2009). Both of these forms of relief are

distinct from compensatory damages that might be available

under the ADA, which were not sought in this matter. Cf. Luna

Perez, 143 S. Ct. at 865–66 (declining to address whether the

compensatory damages sought by Perez were available under

the ADA and clarifying only that the exhaustion requirement

found in 20 U.S.C. § 1415(l) did not bar the claim).

A15

1998). Moreover, when plaintiffs “receive relief

before certification,” as they have here, “the action,

would, under the ordinary rule, become moot absent

an exception.” Wilson v. Gordon, 822 F.3d 934, 944

(6th Cir. 2016) (citing Brunet v. City of Columbus, 1

F.3d 390, 399 (6th Cir. 1993)); see also United States

v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018)

(“Normally a class action would be moot if no named

class representative with an unexpired claim

remained at the time of class certification.” (citing

Gerstein v. Pugh, 420 U.S. 103, 110–11(1975))). The

named plaintiffs have already been compensated for

the past injury claimed here, the district court has

made no determinations as to class certification,5

and plaintiffs fail to explain how any of the possible

exceptions might apply that would permit a class

action to proceed when the named plaintiffs have

already received the requested relief. Cf. Bd. of Sch.

Comm’rs of City of Indianapolis v. Jacobs, 420 U.S.

128, 129 (1975) (determining that an action

improperly certified under Rule 23(a) was moot

when the named plaintiffs no longer attended the

defendant school and therefore no longer had a live

case or controversy); St. Paul Fire & Marine Ins. Co.

v. Barry, 438 U.S. 531, 537 (1978) (“Although not

raised by the parties, [the mootness] issue implicates

our jurisdiction.”). We are not persuaded that

plaintiffs can proceed under this theory because,

even though they alleged a past injury, their claim is

moot given that the named plaintiffs already

received relief and no class has been certified. Cf.

Fox v. Saginaw Cnty., --- F.4th ---, Nos. 221265/1272, 2023 WL 3143922, at *8-9 (6th Cir. Apr.

28, 2023).

A16

Therefore, we affirm the

dismissal of Counts 1, 2, 4, and 5.

district

court’s

2. Count 7: RICO

As to the RICO claim, the district court

determined that, while the plaintiffs alleged an

ongoing injury, they failed to show causation or

redressability. To establish causation, the injury

must be “fairly traceable to the challenged action of

defendant” rather than the result of “the

independent action of some third party not before

the court.” Kanuszewski, 927 F.3d at 412 n. 6

(cleaned up and citation omitted).

Here, plaintiffs bring the RICO claim against the

individually named defendants Rice, Swift, Fidishin,

Norman, and Menzel, based on their assurances to

WISD, the MDE, and the U.S. Department of

Education that the districts and state had the

required IDEA policies and procedures in place and

that they “used interstate wires to defraud plaintiffs

of their rights under IDEA.” (Compl., R. 1, PageID

32–35.) Plaintiffs further argue that Rice, after

making these assurances to the Department of

Education, collected IDEA funds via wire fraud and

distributed the funds to WISD, who then distributed

them to AAPS. AAPS then purportedly used these

funds “for unlawful purposes, including but not

limited to purchasing personal protective equipment

for all staff and students.” (Id. at 38.) Finally,

plaintiffs purport that MDE, WISD, and AAPS did

not follow the IDEA’s procedures when the schools

transitioned to remote learning and as a result,

plaintiffs “have been and are continuing to be

deprived of their rights under IDEA” and

A17

experienced “significant regressions in skills and loss

of competencies.” (Id. at 38–39, 40.)

Plaintiffs must demonstrate that the defendants’

challenged conduct (false assurances via wire fraud)

is fairly traceable to the alleged injury (violation of

procedural rights under the IDEA and regression in

skills and competencies). But as the district court

pointed out, the complaint faults the individuals for

the false assurances, but faults AAPS, WISD, and

MDE for the procedural violations of the IDEA and

any regressions in skills and loss of competencies.

(Op. & Order, R. 73, PageID 1970–71.) Plaintiffs do

not contend that the individual defendants

themselves took part in actions that caused the

alleged injuries to plaintiffs, and so they cannot

trace the defendants’ challenged conduct to the

alleged injury as is required to establish causation.

While it is true that the claim is brought against the

individuals in their official capacities, the complaint

fails to explain how the defendants’ roles are tied to

or how the defendants are responsible for decisions

related to the alleged procedural violations under

the IDEA.

Even assuming causation, plaintiffs cannot show

that their injury is redressable by the relief sought.

To satisfy standing’s redressability element, it “must

be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.”

Lujan, 504 U.S. at 561 (quotation marks and citation

omitted). Plaintiffs request appointment of a Special

Monitor to (1) “oversee the completion of an

independent audit of defendants’ expenditures of

their IDEA Part B Funds from March 2020 to the

present,” (2) oversee expenditures of IDEA Part B

funds for 2021–2022 school year to ensure they were

A18

spent appropriately, and (3) ensure any funds spent

on items other than instruction and/or services for

students with disabilities are reimbursed to a

monitored account and spent only with approval of

the Special Monitor. (Compl., R. 1, PageID 42.)

But it is “merely speculative” that this requested

relief will address the plaintiffs’ purported injuries.

Plaintiffs do not show how reimbursement of any

misspent funds to a monitored account will make it

likely that students will catch up on lost skills, be

made whole for alleged IDEA procedural violations,

or avoid these types of injuries in the future.

Further, even if the plaintiffs could establish

constitutional standing, RICO demands that

plaintiffs establish a direct injury from the predicate

acts, rather than a derivative injury. See Trollinger

v. Tyson Foods, Inc., 370 F.3d 602, 612 (6th Cir.

2004) (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S.

258, 267–68 (1992)). In Anza v. Ideal Steel Supply

Corp., the Supreme Court determined that the

plaintiff could not bring a RICO claim against a

competitor on the theory that the competitor was

“defrauding the New York tax authority and using

the proceeds from the fraud to offer lower prices

designed to attract more customers,” therefore

harming plaintiff’s business. 547 U.S. 451, 457–58

(2006). The Court explained that the “direct victim of

this conduct was the State of New York,” not the

plaintiff, and that the harm to the plaintiff’s

business (allegedly caused by lower prices by the

competitor) was “entirely distinct from the alleged

RICO violation (defrauding the State).” Id. at 458.

The Court went on to reason that the defendant

“could have lowered its prices for any number of

reasons unconnected to the asserted pattern of

A19

fraud.” Id. Similarly, the Court explained that the

plaintiff’s “lost sales could have resulted from factors

other than petitioners’ alleged acts of fraud.” Id. at

459.

The same is true here. The allegedly false

assurances were made to the Department of

Education, not to the plaintiffs, meaning that the

federal government was the direct victim, whereas

the plaintiffs suffered only passed-on injuries.

Moreover, 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.” Id.

Moreover, while not binding on our court, we

also note that several district courts have rejected

substantially similar RICO claims. See J.T. v. de

Blasio, 500 F. Supp. 3d 137, 165–72 (S.D.N.Y. 2020)

(dismissing a RICO claim that “fail[ed] in every

particular” and “reek[ed] of bad faith and

contrivance”), aff’d in part, dismissed in part sub

nom. K.M. v. Adams, No. 20-4128, 2022 WL 4352040

(2d Cir. Aug. 31, 2022), petition for cert. docketed,

No. 22-840 (March 3, 2023); Bills v. Va. Dep’t of

Educ., 605 F. Supp. 3d 744, 757 (W.D. Va. 2022),

appeal docketed, No. 22-1709 (4th Cir. July 6, 2022);

Carmona v. N.J. Dep’t of Educ., No. 21-18746, 2022

WL 3646629, at *7–9 (D.N.J. Aug. 23, 2022)

(dismissing RICO claims that only pleaded an

indirect harm and failed to “plead the existence of an

enterprise” or requisite predicate acts with any

degree of particularity), appeal docketed, No. 222874 (3d Cir. Oct. 12, 2022); Roe v. Baker, No. 2111751, 2022 WL 3916035, at *6 (D. Mass. Aug. 31,

A20

2022) (dismissing RICO claims where plaintiffs

failed to meet the “bare minimum” requirements for

“the litigation equivalent of a thermonuclear device”

(quoting Miranda v. Ponce Fed. Bank, 948 F.2d 41,

44 (1st Cir. 1991)), appeal docketed, No. 22-1740 (1st

Cir. Oct. 6, 2022).

Because plaintiffs fail to plead the necessary

elements to establish standing, we affirm the district

court’s dismissal of the RICO claim.

B. Mootness

Setting standing aside, the case is also moot with

respect to requests for prospective relief. Students

have returned to in-person learning, and the chances

of another extended closure remain low. See

Resurrection Sch. v. Hertel, 35 F.4th 524, 530 (6th

Cir. 2022) (en banc) (finding a preliminary injunction

to be moot because “[w]e are unlikely to see this

mandate in a similar form again”). Even though the

district court dismissed due to lack of standing, we

may affirm based on any ground in the record. Dixon

v. Clem, 492 F.3d 665, 673 (6th Cir. 2007) (citation

omitted).

Mootness derives from Article III’s case-orcontroversy requirement and mandates “that there

be a live case or controversy at the time that a

federal court decides the case.” Sullivan, 920 F.3d at

407, 410 (quoting Burke v. Barnes, 479 U.S. 361, 363

(1987)). When assessing whether a case as a whole is

moot, we consider “whether there is ‘a fair prospect

that the [challenged] conduct will recur in the

foreseeable future.’” Resurrection Sch., 35 F.4th at

530 (alteration in original) (quoting Ohio v. U.S.

A21

Evn’t Prot. Agency, 969 F.3d 306, 310 (6th Cir.

2020)).

In Resurrection School, we determined that a

challenge to a COVID-19-related state-wide mask

mandate was moot. Id. Specifically, we concluded

that it was unlikely that a new mask mandate would

be reimposed given “the changed circumstances

since the State first imposed its mask mandate,”

including case numbers, vaccination rates, and

treatment options. Id. at 529–30; see also Saint

Michael Acad. v. Hertel, No. 22-1054, 2022 WL

14707052 at *2 (6th Cir. Oct. 26, 2022) (holding that

challenges to an expired school shut-down order did

not fall within the “capable of repetition, yet evading

review” exception to the mootness doctrine because

there

was

“no

reasonable

expectation

or

demonstrated probability that the State will

reimpose a school shutdown order”). Here, it is just

as unlikely that another school closure—particularly

one substantially similar to that which began in

March 2020—is going to occur, let alone lead to the

same alleged IDEA violations. The fact that AAPS

closed its schools briefly in January 2022 does not

change this outcome. A week-long delay before

returning to in-person instruction is different in kind

from the unprecedented closures that began in

March 2020.

Interestingly, plaintiffs point to this week-long

delay as evidence of the likelihood of future harm,

but, at another point in their brief, they claim that

the lack of additional school closures “is not

probative of whether the harm is likely to recur.”

(Reply Br. 5.) It is difficult to see how more than

eighteen months of largely uninterrupted in-person

learning is not probative of whether another closure

A22

is likely to recur, while one six-day delay in January

2022 is sufficient to establish a “substantial risk” of

future harm. So even if the plaintiffs alleged an

injury permitting declaratory or injunctive relief, the

case is now moot given that a similar school closure

is not reasonably likely to recur.

III. CONCLUSION

For the foregoing reasons, we affirm.

A23

FILED: July 22, 2022

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 21-cv-11532

Judith E. Levy

United States District Judge

Mag. Judge Anthony P. Patti

Rita C. Simpson-Vlach, et al.,

Plaintiffs,

v.

Michigan Department of Education, et al.,

Defendants.

OPINION AND ORDER DISMISSING THIS

CASE WITHOUT PREJUDICE FOR LACK OF

SUBJECT MATTER JURISDICTION AND

DENYING AS MOOT DEFENDANTS’ MOTIONS

TO DISMISS [20, 34, 38] AND PLAINTIFFS’

MOTION FOR AN AUTOMATIC AND

PRELIMINARY INJUNCTION [42]

Before the Court are three motions to dismiss

filed by the Defendants in this case. (ECF Nos. 20,

34, 38.) The Defendants include a state educational

agency, local educational agencies (“LEA”), and

individuals affiliated with these agencies who are

A24

being sued in their official capacities. The Plaintiffs

are parents of children with disabilities, who bring

this action “individually and on behalf of their . . .

children.” (ECF No. 1, PageID.1.) The Defendants’

motions are fully briefed. On January 27, 2022, the

Court held a hearing by video conference and heard

oral argument.

For the reasons set forth below, the Court finds

that the Plaintiffs fail to establish that they have

Article III standing as to the remaining counts in

this case: Counts 1, 2, 4, 5, and 7. The Plaintiffs’

allegations are insufficient to demonstrate that they

have standing to pursue the relief they seek in

Counts 1, 2, 4, and 5, and to pursue their claim in

Count 7. Because the Plaintiffs do not show that

they have standing to proceed, the case is

DISMISSED WITHOUT PREJUDICE for lack of

subject matter jurisdiction. Accordingly, the

Defendants’ motions to dismiss (ECF Nos. 20, 34, 38)

are DENIED AS MOOT. The Plaintiffs’ motion for

an automatic and preliminary injunction (ECF No.

42)— which was “held in abeyance pending

disposition of [the] Defendants’ motions to dismiss”

(ECF No. 43, PageID.1013)—is also DENIED AS

MOOT.

I. Background

A. The Complaint Filed on June 30, 2021

On June 30, 2021, the complaint in this case was

filed by Plaintiffs Rita C. Simpson-Vlach, Alan

Simpson-Vlach, Kathy Bishop, and Christopher

Place. (ECF No. 1.) Plaintiffs are parents and

residents of Ann Arbor, Michigan, who bring this

A25

putative statewide class action on behalf of

themselves and their children with disabilities: A.S.,

M.S., C.P., and H.P.1 (See id. at PageID.1, 3–5.)

Defendants are the Michigan Department of

Education (“MDE”), the Ann Arbor Public Schools

(“AAPS” or “District”), the Washtenaw Intermediate

School District (“WISD”), Jeanice Swift (the

Superintendent of the AAPS), Marianne Fidishin

(the Executive Director of Student Intervention and

Support Services for the AAPS), Scott Menzel (the

former Interim Superintendent of the WISD), Naomi

Norman (the current Interim Superintendent of the

WISD), and Michael F. Rice (the State

Superintendent for the MDE). (See id. at PageID.1,

5.) Defendants divide themselves into three groups:

(1) the State Defendants, which consist of the MDE

and Rice; (2) the AAPS Defendants, which consist of

the AAPS, Swift, and Fidishin; and (3) the WISD

Defendants, which consist of the WISD, Menzel, and

Norman. Each group of Defendants filed a motion to

dismiss.

In their complaint, Plaintiffs allege that

Defendants violated their rights when the AAPS

closed in March 20202 due to the COVID-19 public

Rita and Alan Simpson-Vlach are the parents and natural

guardians of A.S. and M.S. (See ECF No. 1, PageID.3.) Kathy

Bishop and Christopher Place are the parents and natural

guardians of C.P. and H.P. (See id. at PageID.4.)

1

2 During the hearing on January 27, 2022, Plaintiffs’ counsel

stated that the AAPS “made the decision to close the Ann Arbor

Public Schools . . . based on the orders by the governor of

Michigan” involving “[t]he closure of all non essential

industries.” (ECF No. 62, PageID.1809–1810.) Plaintiffs’

counsel stated that the governor “gave the first executive order”

A26

health crisis and improperly switched from providing

in-person instruction and services to providing

virtual instruction and services. Plaintiffs allege

violations of various state and federal laws,

including the Individuals with Disabilities Education

Act (“IDEA”), 20 U.S.C. § 1400, et seq.

Plaintiffs state that under the IDEA, the student

Plaintiffs are “children with disabilities”3 who “are

entitled to receive a free and appropriate public

education (‘FAPE’) and related services from the

MDE, the WISD and AAPS.”4 (ECF No. 1, PageID.4.)

on “March 10,” which was to take effect on “March 13.” (Id. at

PageID.1810.)

3 Plaintiffs indicate that “in March of 2020 when AAPS ceased

in-person instruction and services due to the COVID-19

pandemic,” A.S. was twelve years old,M.S. was nine years old,

C.P. was ten years old, and H.P. was seven years old. (ECF

No. 1, PageID.3–4.)

4 In the complaint, Plaintiffs include the following information

regarding the student Plaintiffs’ eligibility “for special

education from AAPS” (ECF No. 1, PageID.8, 10–11, 13

(emphasis added)):

* “A.S. is eligible for special education from AAPS due to a

specific learning disability. . . . A.S. struggles with focus,

generally, and math calculations, specifically, and requires a

high degree of individualized attention and instruction.” (Id. at

PageID.8.)

* “M.S. is eligible for special education from AAPS due to a

health impairment arising from her medical diagnosis of

attention deficit hyperactivity disorder (‘ADHD’) and her

‘limited alertness to education.’ . . . M.S. struggles with focus,

generally, and reading, specifically . . . .” ( Id. at Page ID.10.)

* “C.P. is eligible for special education from AAPS due to a

health impairment resulting in limited alertness to education. .

A27

Each student Plaintiff has an Individualized

Education Plan (“IEP”), which is the “primary

mechanism” for ensuring that students with

disabilities receive a FAPE.5 (Id. at PageID.5; see id.

at PageID.8, 10, 12, 14.) The student Plaintiffs’ IEPs

from 2019 or 2020 “state[ ] that ‘the primary mode of

service is directly working with the student’” but “do[

] not state whether this mode will be in-person or

virtual.”6 (Id. at PageID.8, 10, 12, 14.)

. . C.P. struggles with reading, writing, perception, fine motor

and gross motor skills, mobility, visual motor integration,

receptive and expressive speech, and anxiety.” ( Id. at Page

ID.11– 12.)

* “H.P. is eligible for special education from AAPS due to a

health impairment arising from her medical diagnosis of

[ADHD] and ‘limited alertness to education.’ . . . H.P. struggles

with inattention, hyperactivity, impulsivity, learning and

executive functioning problems, reading, writing, math, visual

motor integration, social-emotional/behavioral skills, and

sensory processing.” ( Id. at Page ID.13.)

5 Plaintiffs indicate in the complaint that

[a]n IEP is a written statement, prepared for every child with a

disability, that sets forth the special education and related

services, supplementary aids and services, and program

modifications or supports to be provided to the child, or on

behalf of the child, to enable that child to achieve a

comprehensive set of annual goals and shortterm objectives.

(ECF No. 1, Page ID.5.)

6 The complaint provides the following details regarding each

student Plaintiff’s IEP and the services necessary to receive a

FAPE:

* “According to A.S.’s October 28, 2019 IEP, A.S. received

between fifty-three minutes and an hour and six minutes of

resource room instruction per week. . . . A.S. requires direct

A28

With respect to the four student Plaintiffs, the

complaint alleges:

61. On March 16, 2020, AAPS ceased all inperson education due to the COVID-19

pandemic.

62. As a result of the March 16, 2020 closure of

AAPS schools, AAPS altered A.S.’s[, M.S.’s,

resource room services to accommodate his disabilities so he

can receive a FAPE.” (ECF No. 1, Page ID.8.)

* “According to M.S.’s February 12, 2020[ ] IEP, M.S. received

twenty-thirty minutes of social work services three or four

times a month, and one and a half to two and a half hours of

resource room instruction for reading a week. . . . M.S. requires

direct resource room services and direct social work services to

accommodate her disability so she can receive a FAPE.” ( Id. at

Page ID.10.)

* “According to C.P.’s April 4, 2019 IEP, C.P. received three to

four thirtyminute direct teacher consultant sessions a week,

three thirty-minute direct occupational therapy sessions a

month, three thirty-minute direct speech and language therapy

sessions a month, and three thirty-minute direct social work

sessions a month. . . . C.P.’s April 4, 2019 IEP requires direct

teacher consultant services, occupational therapy, speech and

language therapy, and social work services to accommodate his

disability so he can receive a FAPE.” ( Id. at Page ID.12.)

* “According to H.P.’s December 9, 2020 IEP, H.P. received

three to four twenty-five-to-thirty-minute sessions of

occupational therapy a month, three to four twenty-five-tothirty-minute sessions of social work services a month, and

seven and a half hours of resource room instruction per week. .

. . H.P.’s December 9, 2020 IEP requires direct occupational

therapy, direct social work services and direct resource room

instruction to accommodate her disability so she can receive a

FAPE.” ( Id. at Page ID.13–14.)

A29

C.P.’s, and H.P.’s] IEP[s] for the 2019-2020

school year to complete virtual instruction and

services without any prior written notice and/or

the proper participation of parents.

63. The alterations and concomitant placement

of A.S.[, M.S., C.P., and H.P.] at home receiving

virtual instruction and services was procedurally

defective because AAPS:

a. Altered A.S.’s[, M.S.’s, C.P.’s, and H.P.’s]

IEP[s] to complete virtual instruction

without prior written notice or any written

notice;

b. Altered A.S.’s[, M.S.’s, C.P.’s, and H.P.’s]

IEP[s] without the meaningful participation

of [their] parents;

c. Failed to reconvene an IEP meeting at a

time that was mutually agreeable with

parents prior to, or even soon after, changing

A.S.’s[, M.S.’s, C.P.’s, and H.P.’s] placement

from in-person instruction and services to

home placement with virtual instruction and

services;

d. Failed to ensure that A.S.[, M.S., C.P., and

H.P.] could access a free and appropriate

public education on the same level as [their]

non-disabled peers.

64. During the 2019-2020 school year, from

March 16, 2020 through June 12, 2020, A.S.

A30

[, M.S., C.P., and H.P.] attended school at home

with virtual instruction and services.

65. During the 2020-2021 school year, A.S.[,

M.S., and C.P.] attended school at home with

virtual instruction [and/or services] until May of

2021 when AAPS offered a hybrid option.

***

107. During the 2020-2021 school year, H.P.

attended school at home receiving virtual

instruction and services until January of 2021

when her mother placed her in a private school.

(Id. at PageID.8–9, 15; see id. at PageID.10–14.)

In other words, Plaintiffs allege that the AAPS

unilaterally changed the location and mechanism of

the delivery of instruction and related services from

at school/in person to at home/virtual during the

2019–2020 and 2020–2021 school years. Plaintiffs

believe this change altered the student Plaintiffs’

IEPs and educational placements and affected the

student Plaintiffs’ access to a FAPE.

Plaintiffs’ complaint contains eight counts.7 In

Count 1, Plaintiffs allege that the WISD, AAPS, and

MDE committed four “systemic violations” of the

IDEA. (Id. at PageID.19–22.) In Count 2, Plaintiffs

7 The complaint also contains “Class Action Allegations.” (ECF

No. 1, Page ID.15.) Plaintiffs indicate that they “bring this

action on behalf of themselves and all other similarly situated

school aged children with disabilities covered by IDEA in

Michigan and their parents, for the purpose of asserting the

claims alleged in this complaint on a common basis.” ( Id.)

Plaintiffs have not filed a motion for class certification, and this

case has not been certified as a class action.

A31

allege that “Defendants” violated Rules 300.324 and

300.518 of the Michigan Administrative Rules for

Special Education (“MARSE”). (Id. at PageID.22–23.)

In Count 3, Plaintiffs allege that the AAPS (and

possibly the MDE) violated § 504 of the

Rehabilitation Act. (See id. at PageID.23–25.) In

Count 4, Plaintiffs allege that the AAPS (and

possibly the MDE) violated Title II of the Americans

with Disabilities Act (“ADA”). (See id. at PageID.25–

27.) In Count 5, Plaintiffs allege that the AAPS (and

possibly the MDE) violated the Michigan Persons

with Disabilities Civil Rights Act (“PWDCRA”). (See

id. at PageID.27.) In Count 6, Plaintiffs assert a

claim under 42 U.S.C. § 1983 against “Defendants,”

alleging a Fourteenth Amendment equal protection

violation. (Id. at PageID.28–29.) In Count 7,

Plaintiffs allege that the individual Defendants

(Swift, Fidishin, Menzel, Norman, and Rice) violated

the Racketeer Influenced and Corrupt Organizations

Act (“RICO”). (See id. at PageID.29–40.) In Count 8,

Plaintiffs assert a RICO conspiracy claim against the

individual Defendants. (See id. at PageID.40–41.)

Plaintiffs allege that Defendants’ actions caused

them to suffer “damages, including regressions in

skills and loss of competencies regarding the goals

and objectives outlined in their IEPs.” (Id. at

PageID.22; see id. at PageID.29, 40.)

Plaintiffs seek declaratory and injunctive relief.

(See id. at PageID.2, 5, 41–43.) Plaintiffs also seek

fees, costs, and expenses (including attorney fees).

(See id. at PageID.42.) In the complaint’s “Prayer for

Relief,” Plaintiffs ask that the Court:

1. Assert jurisdiction over this matter;

A32

2. Certify this action as a class action pursuant

to Fed. R. Civ. P. 23(a) and (b)(2)[;]

3. Issue a declaratory judgment that the class

members’ pendency placement is in-person

instruction and services;

4. Issue a declaratory judgment that AAPS and

other similarly situated LEAs’ unilateral change

of placement of plaintiffs from in-person

instruction and services to virtual instruction

and services violated the procedural safeguards

of IDEA and discriminated against plaintiffs

under IDEA, MARSE, § 504, the ADA, the

[PWDCRA] and § 1983;

5. Issue a declaratory judgment that the MDE

failed to monitor and provide proper oversight

and resources to AAPS and other similarly

situated LEAs during the COVID-19 pandemic

as required under IDEA and MARSE;

6. Order the MDE, WISD, AAPS and other

similarly situated LEAs to comply with the

procedural safeguards guaranteed by IDEA for

the 2021-2022 school year for the class members

unless the U.S. DOE [Department of Education]

issues IDEA waivers;

7. Assign a Special Monitor to: a) oversee the

completion

of

Independent

Education

Evaluations (“IEE”) for all the class members to

determine regressions and loss of competencies

due to the unilateral changes to their IEPs and

placements, and reconvene IEP Team meetings

A33

within thirty days of the completion of the IEEs;

b) make expert recommendations to the Court

regarding compensatory education or pendency

payments for the class members to address any

regressions and/or loss of competencies; c) ensure

the expert recommendations are included in

writing in the class members’ IEP documents;

8. Require the MDE and its LEAs to comply with

IDEA, MARSE, the ADA, § 504, the [PWDCRA]

and § 1983 in the event of any future school

closures for which the U.S. DOE does not issue

IDEA waivers;

9. Assign a RICO Special Monitor to: a) oversee

the completion of an independent audit of

defendants’ expenditures of their IDEA Part B

Funds from March of 2020 to the present; b)

oversee the defendants’ expenditures of their

IDEA Part B Funds for the 2021-2022 school

year to ensure defendants spend IDEA Part B

Funds for instruction and/or services for

students with disabilities under IDEA; c) ensure

any IDEA Part B Funds that defendants spent

on items other than instruction and/or services

for students with disabilities under IDEA from

March of 2020 through the present are

reimbursed to a monitored account to be spent

only upon review and approval by the RICO

Special Monitor;

10. Declare plaintiffs to be the “substantially

prevailing party” (for purposes of IDEA’s fee

shifting provision);

A34

11. Grant leave to plaintiffs to submit a

statutory fee application;

12. Direct defendants to pay for the costs and

expenses for maintaining this action, including

reasonable attorneys’ fees pursuant to 20 U.S.C.

§ 1415(i)(3)(B);

13. Award attorneys’ fees pursuant to the

Rehabilitation Act, the Americans with

Disabilities Act, 42 U.S.C. § 1988 and the

Michigan Persons with Disabilities Civil Rights

Act;

14. Retain jurisdiction over this action until such

time as this Court is satisfied that the systemic

violations of the laws and regulations

complained of herein have been rectified; and

15. Grant such other or further relief that the

Court may deem just and proper.

(Id. at PageID.41–43.)

During the January 27, 2022 hearing, Plaintiffs’

counsel informed the Court that Plaintiffs are no

longer pursuing Count 8. (See ECF No. 62,

PageID.1831.) Following the hearing, the Court

ordered Plaintiffs to indicate to the Court which

counts remain in the case, given “Plaintiffs’ counsel’s

acknowledgement at the oral argument that certain

claims cannot be maintained in the Sixth Circuit, as

well as counsel’s indication that the Release and

Settlement Agreements [discussed below] fully

redress Plaintiffs’ injuries.” (ECF No. 64,

PageID.1857; see ECF No. 69, PageID.1873 & n.1

A35

(stating that Plaintiffs’ counsel indicated during the

January 27, 2022 hearing “that the Release and

Settlement Agreements fully redress Plaintiffs’

injuries” and quoting relevant portions of the

hearing transcript).) In a document filed on

February 17, 2022, Plaintiffs provided the following

information regarding the status of each count:

1. Count I: The IDEA cause of action remains as to

the systemic violations for named Plaintiffs and both

the systemic and FAPE violations for putative class

members. Plaintiffs continue to seek prospective,

injunctive relief to prevent further systemic

violations as set forth in Plaintiffs’ Complaint.

2. Count II: Plaintiffs voluntarily dismiss the

MARSE Cause of Action in Count II as to State

Defendants only.

3. Count III: Plaintiffs voluntarily dismiss the

Section 504 claim in Count III as to all Defendants.

4. Count IV: The cause of action under the ADA

remains as to the disparate impact of the COVID

school closings.

5. Count V: Plaintiffs voluntarily dismiss the

PWDCRA claim under Count V as to State

Defendants only.

6. Count VI: Plaintiffs voluntarily dismiss the

Section 1983 claim in Count VI as to all Defendants.

A36

7. Count VII: Plaintiffs continue to seek prospective,

injunctive relief for RICO violations outlined in

Count VII.

8. Count VIII: Plaintiffs voluntarily dismiss Count

VIII as to all Defendants.

(ECF No. 68, PageID.1868–1869 (emphasis in

original).) Thus, the remaining counts in this case

are Counts 1, 2, 4, 5, and 7 (but the claims in Counts

2 and 5 are no longer asserted against the State

Defendants).

In addition to asking Plaintiffs to clarify which

claims they continue to pursue, the Court gave

Plaintiffs an opportunity—both during the hearing

and after it had concluded—to address issues

regarding the justiciability of this case under Article

III. Plaintiffs had a chance to make arguments

related to Article III justiciability orally (during the

hearing) (see ECF No. 62, PageID.1800–1801, 1829–

1830) as well as in writing (in a supplemental brief).

(See ECF Nos. 69, 72.)

B. Administrative Proceedings

The complaint states that the parent Plaintiffs

“filed . . . administrative due process complaint[s]

against defendants but did not exhaust their

administrative due process remedies under 20

U.S.C. § 1415(i)(2), on behalf of A.S.[, M.S., C.P., and

H.P.], because their claims fall within the exceptions

specified by law.” (ECF No. 1, PageID.9, 11, 13, 15.)

Regarding the administrative due process

complaints, the State Defendants indicate that

Plaintiffs initially failed to comply with the

A37

requirement in MARSE Rule 340.1724f that a due

process complaint (at the administrative level) be

served on both the MDE and the school district

because Plaintiffs served four letters that they

“intended to be treated as due process complaints”

on only the AAPS. (ECF No. 34, PageID.511.) The

MDE received Plaintiffs’ four proposed due process

complaints on August 6, 2021. (See id.)

On January 11, 2022, the parties filed a joint

update in this case regarding the outcome of the

administrative proceedings. (ECF No. 54.) The

parties indicate in their filing that

[o]n August 9, 2021, Plaintiffs filed four due

process complaints with the State of Michigan

Office of Administrative Hearings and Rules

against the Ann Arbor Public Schools (“AAPS”):

In the Matter of R.S.V[.] obo M.S.V. v. Ann Arbor

Public Schools, Docket No. 21-017885; In the

Matter of R.S.V. obo A.S.V. v. Ann Arbor Public

Schools, Docket No. 21-017893; In the Matter of

K.B. obo H.P. v. Ann Arbor Public Schools,

Docket No. 21-017895; and In the Matter of K.B.

obo C.P. v. Ann Arbor Public Schools, Docket No.

21-017897. In November 2021, Plaintiffs and

AAPS entered into Release and Settlement

Agreements in each of these matters. . . .

Pursuant to these Release and Settlement

Agreements, Administrative Law Judge Michael

J. St. John entered Orders of Dismissal

dismissing each matter with prejudice in

November 2021.

A38

(Id. at PageID.1427–1428.) Plaintiffs note in the

parties’ filing that each Release and Settlement

Agreement contains the following language:

This Agreement does not set forth any

understanding or settlement of any of the

Student’s allegations regarding procedural and

systemic violations under IDEA, discrimination

under the Americans with Disabilities Act, the

Michigan Persons With Disabilities Civil Rights

Act, Section 504 of the Rehabilitation Act or 42

U.S.C. [§] 1983, or violations of the Racketeer

Influenced and Corrupt Organizations Act

(“RICO”).8

(Id. at PageID.1428.)

Copies of the four Release and Settlement

Agreements and the four Orders of Dismissal are

attached to the parties’ filing as exhibits. (ECF Nos.

54-2, 54-3.) All four Agreements state: “[T]he

Parents and the District voluntarily enter into this

Agreement to resolve the disputes alleged in the Due

Process Complaint regarding the Student’s right to a

FAPE under IDEA.” (ECF No. 54-2, PageID.1433,

1439, 1446, 1451.) Three of the Agreements address

the provision of compensatory services.9 (See id. at

This language does not mention Plaintiffs’ MARSE claim,

which they assert in Count 2 of the complaint against

“Defendants.” (ECF No. 1, PageID.22.)

8

9 Regarding the provision of compensatory services, the three

Agreements provide that (1) the AAPS will evaluate the

student to determine whether they need compensatory services

to “address possible educational deficits sustained by the

Student as a result of the District’s transition to virtual

instruction on and after March 2020,” (2) the AAPS will

A39

PageID.1434, 1440, 1446–1447.) Out of these three

Agreements, two of them also provide that the AAPS

will pay a certain sum10 to the parents “as

unrestricted funds for the benefit of the Student”

and “to compensate Parents for out-of-pocket costs

they have incurred for the Student’s tutoring during

the period when the Student was participating in

virtual instruction.” (Id. at PageID.1434, 1440.) The

fourth Agreement—which does not address

compensatory services—provides that the AAPS will

pay $3,500 to the parents “as unrestricted funds for

the benefit of the Student” and “to compensate

Parents for tuition expenses incurred by the Parents

as a result of the Student’s enrollment in private

school.”11 (Id. at PageID.1452.)

convene an IEP to provide the results of its evaluation and will

offer compensatory services if they are found to be necessary,

(3) parents who disagree with the AAPS’s evaluation may

request an Independent Educational Evaluation (“IEE”) at the

AAPS’s expense, (4) the AAPS will grant any request for an

IEE and will reimburse parents for up to $3,000 for the IEE, (5)

an IEP will be convened “as soon as possible after the IEE is

concluded,” and (6) parents reserve the right to file a new due

process complaint if the IEE recommends compensatory

services but that recommendation is not implemented by the

IEP team that meets after the IEE is completed. (ECF No. 54-2,

PageID.1434, 1440, 1446–1447.)

10 One Agreement provides that the AAPS will pay $500 to the

parents. (See ECF No. 54-2, PageID.1434.) The second

Agreement provides that the AAPS will pay $1,000 to the

parents. (See id. at PageID.1440.)

11 During the hearing on January 27, 2022, Plaintiffs’ counsel

agreed with counsel for the AAPS Defendants that the “four

plaintiffs have gotten compensatory services” and monetary

compensation as part of the settlement of the administrative

proceedings. (ECF No. 62, PageID.1797; see id. at PageID.1801,

A40

In his November 2021 orders dismissing with

prejudice the four administrative matters identified

above, Administrative Law Judge St. John notes

that the parties “requested that the hearing in . . .

[each] matter be dismissed.” (ECF No. 54-3,

PageID.1457, 1459, 1461, 1463.) The order issued in

each matter states that because of the dismissal

with prejudice, “we have removed this case from our

formal hearing docket, cancelled the prehearing . . .

and the hearing . . . and are closing our file in this

matter.” (Id.)

II. Legal Standard

“Under Article III of the Federal Constitution,

[federal courts] can only decide ‘Cases’ or

‘Controversies.’” Thompson v. DeWine, 7 F.4th 521,

523 (6th Cir. 2021) (alteration added) (quoting U.S.

Const. art. III, § 2). “Courts have explained the ‘case

or controversy’ requirement through a series of

‘justiciability doctrines,’ including, ‘perhaps the most

important,’ that a litigant must have ‘standing’ to

invoke the jurisdiction of the federal courts.” Parsons

v. U.S. Dep’t of Just., 801 F.3d 701, 710 (6th Cir.

2015) (quoting Nat’l Rifle Ass’n of Am. v. Magaw,

132 F.3d 272, 279 (6th Cir. 1997)). “Standing ‘goes to

[a c]ourt’s subject matter jurisdiction.’” Marks v.

Schafer & Weiner, PLLC, No. 20-11059, 2022 WL

866836, at *5 (E.D. Mich. Mar. 23, 2022) (alteration

1815, 1818, 1830.) Plaintiffs’ counsel indicated that “[t]he

FAPE for the named clients is resolved now for the closures

that occurred prior to this year.” (Id. at PageID.1815; see id. at

PageID.1817–1818, 1830.) Plaintiffs’ counsel also indicated that

there have been no “compliance problems” with the Release and

Settlement Agreements. (See id. at PageID.1778.)

A41

in original) (quoting Loren v. Blue Cross & Blue

Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007)).

“If a plaintiff cannot establish constitutional

standing, his or her claim must be dismissed for lack

of subject matter jurisdiction.” Id. (citing Loren, 505

F.3d at 607); see Glennborough Homeowners Ass’n v.

U.S. Postal Serv., 21 F.4th 410, 414 (6th Cir. 2021)

(stating that “whether a party lacks ‘Article III

standing is jurisdictional and not subject to waiver’”

(quoting LPP Mortg., Ltd. v. Brinley, 547 F.3d 643,

647 (6th Cir. 2008))).

The Sixth Circuit states that

[t]o establish standing, [the plaintiff] must meet

three requirements: (1) “injury in fact—a harm

that is both [(a)] concrete [and particularized,]

and [(b)] actual or imminent, not conjectural or

hypothetical,” (2) causation—a “fairly traceable

connection between the alleged injury in fact and

the alleged conduct of the defendant,” and

(3)“redressability—a substantial likelihood that

the requestedrelief will remedy the alleged

injury in fact.”

Babcock v. Michigan, 812 F.3d 531, 539 (6th Cir.

2016) (alterations added) (quoting Vermont Agency of

Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771

(2000)); Buchholz v. Meyer Njus Tanick, PA, 946

F.3d 855, 861 (6th Cir. 2020); see Sullivan v.

Benningfield, 920 F.3d 401, 407–08 (6th Cir. 2019)

(“‘In the context of claims for injunctive or

declaratory relief,’ the threatened injury in fact must

be ‘concrete and particularized,’ as well as ‘actual

and imminent, not conjectural or hypothetical[.]’”

(alteration in original) (quoting Sumpter v. Wayne

A42

Cty., 868 F.3d 473, 491 (6th Cir. 2017))). “Each

requirement is ‘an indispensable part of the

plaintiff’s case’ and ‘must be supported in the same

way as any other matter on which the plaintiff bears

the burden of proof.’” Midwest Media Prop., L.L.C. v.

Symmes Twp., Ohio, 503 F.3d 456, 461 (6th Cir.

2007) (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 560 (1992)). “Whether a plaintiff has standing

to sue is ‘determined as of the time the complaint is

filed.’” Sullivan, 920 F.3d at 407 (quoting Cleveland

Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513,

524 (6th Cir. 2001)).

Regarding the first standing requirement of an

injury in fact, “[a] concrete injury is . . . ‘real and not

abstract,’” Buchholz, 946 F.3d 861 (citing Spokeo,

Inc. v. Robins, 578 U.S. 330, 340 (2016)), and “must

actually exist.” Spokeo, Inc., 578 U.S. at 340

(internal citation omitted). “To qualify as

particularized, an injury ‘must affect the plaintiff in

a personal and individual way,’ Lujan, 504 U.S. at

560 n.1, . . . not in a general manner that affects the

entire citizenry, Lance v. Coffman, 549 U.S. 437, 439

. . . (2007).”12 Gerber v. Herskovitz, 14 F.4th 500, 506

12 That Plaintiffs bring this case as a putative class action does

not excuse them from the requirement to allege a

particularized injury for purposes of Article III standing. “A

potential class representative must demonstrate individual

standing.” Thompson v. Love’s Travel Stops & Country Stores,

Inc., 748 F. App’x 6, 10 (6th Cir. 2018) (quoting Fallick v.

Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998)).

And “‘named plaintiffs who represent 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 and which they purport to represent.’” In re

Packaged Ice Antitrust Litig., 779 F. Supp. 2d 642, 657 (E.D.

Mich. 2011) (quoting Lewis v. Casey, 518 U.S. 343, 347 (1996)).

A43

(6th Cir. 2021), cert. denied sub nom. Brysk v.

Herskovitz, 142 S. Ct. 1369 (2022), and cert. denied,

No. 21-1263, 2022 WL 1528419 (U.S. May 16, 2022).

“Standing can exist even if the alleged injury ‘may be

difficult to prove or measure.’” Gamboa v. Ford

Motor Co., 381 F. Supp. 3d 853, 886 (E.D. Mich.

2019) (quoting Spokeo, Inc., 578 U.S. at 341–42).

“The threat of future harm can satisfy th[e

injury-in-fact] requirement as long as there is a

‘substantial risk’ that the harm will occur,” but

“‘[a]llegations of possible future injury’ are not

sufficient.” Kanuszewski v. Mich. Dep’t of Health &

Hum. Servs., 927 F.3d 396, 405 (6th Cir. 2019)

(second alteration in original) (emphasis in original)

(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398,

409, 414 n.5 (2013)). “[A] yet-to-happen ‘injury must

be certainly impending to constitute injury in fact[.]’”

Ass’n of Am. Physicians & Surgeons v. U.S. Food &

Drug Admin., 13 F.4th 531, 545 (6th Cir. 2021)

(emphasis in original) (quoting Clapper, 568 U.S. at

409). “The Supreme Court has noted that ‘a highly

attenuated chain of possibilities [ ] does not satisfy

the requirement that threatened injury must be

certainly impending.’” Kanuszewski, 927 F.3d at

405–06 (alteration in original) (quoting Clapper, 568

U.S. at 410).

The type of harm alleged—(1) past harm or (2)

ongoing or future harm—“affects the type of relief

available,” so “[t]he distinction between [these]

harms is significant.” Id. at 406. The Sixth Circuit

instructs that

[p]ast harm allows a plaintiff to seek damages,

but it does not entitle a plaintiff to seek

injunctive or declaratory relief. This is because

A44

the fact that a harm occurred in the past “does

nothing to establish a real and immediate threat

that” it will occur in the future, as is required for

injunctive relief. City of Los Angeles v. Lyons,

461 U.S. 95, 106, 103 S. Ct. 1660, 75 L.Ed.2d 675

(1983). Obtaining standing for declaratory relief

has the same requirements as obtaining

standing for injunctive relief. National Rifle

Ass’n of Am. v. Magaw, 132 F.3d 272, 279 (6th

Cir. 1997) (“When seeking declaratory and

injunctive relief, a plaintiff must show actual

present harm or a significant possibility of future

harm in order to demonstrate the need for preenforcement review.”).

Id.; see Ass’n of Am. Physicians & Surgeons, 13 F.4th

at 540 (stating that “a completed injury may give a

plaintiff the right to seek damages, [but] it does not

alone give the plaintiff the right to seek an

injunction” (citing Lyons, 461 U.S. at 109)); Sullivan,

920 F.3d at 408 (“‘Past exposure to illegal conduct’ is

insufficient to demonstrate an injury in fact that

warrants declaratory or injunctive relief unless the

past injury is accompanied by ‘continuing, present

adverse effects.’” (quoting O’Shea v. Littleton, 414

U.S. 488, 495–96 (1974); Grendell v. Ohio Sup. Ct.,

252 F.3d 828, 832 (6th Cir. 2001))).

As for the second requirement of standing,

“[c]ausation exists if the injury is one ‘that fairly can

be traced to the challenged action of the defendant.’”

Gamboa, 381 F. Supp. 3d at 886 (quoting Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26, 41 (1976)).

Causation in this context is “‘not focused on whether

the defendant “caused” the plaintiff’s injury in the

liability sense; the plaintiff need only allege “injury

A45

that fairly can be traced to the challenged action of

the defendant, and not injury that results from the

independent action of some third party not before

the court.”’” Id. (quoting Wuliger v. Mfrs. Life Ins.

Co., 567 F.3d 787, 796 (6th Cir. 2009)).

To meet the third requirement of standing

involving redressability, “it must be likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Amiri v. Nielsen,

328 F. Supp. 3d 761, 767 (E.D. Mich. 2018)

(emphasis in original) (quoting Lujan, 504 U.S. at

561). “Relief that does not remedy the injury suffered

cannot bootstrap a plaintiff into federal court.”

Glennborough Homeowners Ass’n, 21 F.4th at 417

(quoting Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 107 (1998)). “[A] ‘remedy must be “limited to

the inadequacy that produced [a plaintiff’s] injury in

fact.”’” Ass’n of Am. Physicians & Surgeons, 13 F.4th

at 540 (second alteration in original) (quoting Gill v.

Whitford, 138 S. Ct. 1916, 1930 (2018)). To

demonstrate redressability for purposes of Article III

standing,

[t]he plaintiff must show that each requested

remedy will redress some portion of the

plaintiff’s injury. See DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352–53, 126 S. Ct. 1854, 164

L.Ed.2d 589 (2006). Conversely, the plaintiff

cannot seek a remedy that has no ameliorative

effects on that injury. See California, 141 S. Ct.

at 2116. While, for example, a completed injury

may give a plaintiff the right to seek damages, it

does not alone give the plaintiff the right to seek

an injunction. See City of Los Angeles v. Lyons,

461 U.S. 95, 109, 103 S. Ct. 1660, 75 L.Ed.2d 675

A46

(1983). Likewise, a plaintiff cannot “combin[e] a

request for injunctive relief for which he has

standing with a request for injunctive relief for

which he lacks standing.” Salazar v. Buono, 559

U.S. 700, 731, 130 S. Ct. 1803, 176 L.Ed.2d 634

(2010) (Scalia, J., concurring in the judgment);

see Lewis, 518 U.S. at 357, 116 S. Ct. 2174.

Id. (second alteration in original) (emphasis in

original).

“The plaintiff carries the burden of establishing

th[e] three elements” of standing, Buchholz, 946 F.3d

at 861, as “the part[y] invoking federal jurisdiction.”

Kanuszewski, 927 F.3d at 405 (citing Shearson v.

Holder, 725 F.3d 588, 592 (6th Cir. 2013)).

Regarding this burden, the Sixth Circuit states:

A plaintiff must demonstrate standing for each

claim she seeks to press and for each form of

relief she seeks. Id. at 2208. At the pleading

stage, that burden requires a “plaintiff[ ] to

clearly allege facts that demonstrate each

element of standing.” Memphis A. Philip

Randolph Inst. v. Hargett, 978 F.3d 378, 386 (6th

Cir. 2020) (citing Spokeo, Inc. v. Robins, 578 U.S.

330, 338, 136 S. Ct. 1540, 194 L.Ed.2d 635

(2016)); see also Ward v. Nat’l Patient Acct.

Servs. Sols., Inc., 9 F.4th 357, 363 (6th Cir. 2021)

(requiring the plaintiff to “clearly assert in his

complaint” the harm he suffered from an

underlying legal violation). This standard aligns

with the one governing motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6),

meaning the [plaintiff] cannot rely on general or

A47

conclusory allegations in support of its standing,

but instead must assert a plausible claim for

why it has standing to pursue its . . . claim. Ass’n

of Am. Physicians & Surgeons v. FDA, 13 F.4th

531, 544 (6th Cir. 2021).

Glennborough Homeowners Ass’n, 21 F.4th at 414

(first alteration in original); see Binno v. Am. Bar

Ass’n, 826 F.3d 338, 344 (6th Cir. 2016) (“Conclusory

allegations do not satisfy the requirements of Article

III.” (citing Warth v. Seldin, 422 U.S. 490, 508

(1975))).

III. Analysis

In their motion to dismiss, the AAPS Defendants

argue that student Plaintiff H.P. lacks standing to

bring any claims because H.P.’s parents switched

her from a public school to a private school in

January 2021. For the reasons set forth below, the

Court finds that Plaintiffs fail to show that they

have Article III standing with respect to all of their

remaining claims (not just the ones asserted by

H.P.). Plaintiffs’ allegations are insufficient to

establish standing as to the relief they seek in

Counts 1, 2, 4, and 5, and as to their RICO claim in

Count 7.

A. The Parties’ Arguments Regarding Article III

Standing

The AAPS Defendants argue that H.P.’s claims

should be dismissed because H.P. does not have

standing to bring a claim for compensatory services

given that she is “no longer enrolled in the District.”

A48

(ECF No. 34, PageID.523; see id. at PageID.524.) The

AAPS Defendants indicate that since January 2021,

H.P. has been “attend[ing] the Daycroft Montessori

School, a private program located within the Dexter

Community School District.” (Id. at PageID.509, 523

(citing ECF No. 36, PageID.598, Fidishin Decl., ¶

28).) The AAPS Defendants state that “students who

have been voluntarily placed in a private program do

not have an individual right to receive some or all of

the special education and related services that the

child would receive if enrolled in a public school.”

(Id. at PageID.523 (citing 34 C.F.R. § 300.137).) The

AAPS Defendants also state that “[a] student with a

disability parentally placed in a non-public school is

not entitled to FAPE, ESY [Extended School Year13]

services or compensatory education services.” (Id.

(citing ECF No. 36, PageID.598, Fidishin Decl., ¶

30).) The AAPS Defendants note that H.P. “has not

been re-enrolled in the District.” (Id. at PageID.524

(citing ECF No. 36, PageID.599, Fidishin Decl., ¶

32).)

In their response to the AAPS Defendants’

motion to dismiss, Plaintiffs argue that “H.P. has

standing to pursue compensatory services for the

AAPS[ ] Defendants[’] violation of IDEA procedural

safeguards.” (ECF No. 46, PageID.1146.) Plaintiffs

reference a United States Supreme Court case called

Sch. Comm. of Town of Burlington, Mass. v. Dep’t of

Educ. of Mass., 471 U.S. 359, 367 (1985), and a

Second Circuit case called Ventura de Paulino v.

13 According to the AAPS Defendants, Extended School Year “is

a service offered to students who may regress in their

educational skills without additional education during the

summer.” (ECF No. 34, PageID.502; see ECF No. 36,

PageID.594–595.)

A49

N.Y.C. Dep’t of Educ., 959 F.3d 519, 531 (2d Cir.

2020), cert. denied, 141 S. Ct. 1075 (2021), reh’g

denied, 141 S. Ct. 1530 (2021). (See ECF No. 46,

PageID.1146.) But Plaintiffs do not explain how

these cases apply. (See id.)

From what the Court can tell from its own

review of the cases, neither case cited by Plaintiffs

addresses the issue of standing. In Sch. Comm. of

Town of Burlington, Mass., the Supreme Court

considered the retroactive reimbursement to parents

for private school tuition and related expenses when

a court determines that the parents’ private school

placement was proper and “that an IEP calling for

placement in a public school was inappropriate.” 471

U.S. at 370. In Ventura de Paulino, the Second

Circuit considered (1) “whether under the ‘stay-put’

provision of the IDEA parents [of a child enrolled in

a private school] who unilaterally enroll their child

in a new private school and challenge the child’s IEP

are entitled to public funding for the new school

during the pendency of the IEP dispute” if “the

educational program being offered at the new school

is substantially similar to the program that was last

agreed upon by the parents and the school district

and was offered at the previous school”; and (2)

“whether the fact that the school district has

authority to decide how the child’s agreed-upon

educational program is to be provided during the

pendency of an IEP dispute means that the parents

also have such authority.” 959 F.3d at 524–25.

In their reply, the AAPS Defendants argue that

because Plaintiffs’ counsel “concede that HP is no

longer enrolled in the District,” counsel “are forced to

pivot and state that they are now seeking the

previously unpled remedy of reimbursement for

A50

private school tuition for this student.” (ECF No. 49,

PageID.1230 (citing ECF No. 46, PageID.1146).) The

AAPS Defendants indicate that Plaintiffs filed an

amended

due

process

complaint

(at

the

administrative level) on September 21, 2021 that

“sought tuition reimbursement rather than the

remedies set forth in HP’s original due process

complaint.”14 (Id. at PageID.1231 n.7 (citing ECF No.

50, PageID.1236, Fidishin Supplemental Decl., ¶ 9;

ECF No. 50-8).) The AAPS Defendants state that

“[n]o leave to amend has been sought here.” (Id.) The

AAPS Defendants are correct that Plaintiffs have

not requested permission to amend the complaint in

this case to seek tuition reimbursement.

B. Plaintiffs’ Standing Under Article III

In their filings, Plaintiffs and the AAPS

Defendants do not address the requirements for

standing under Article III. “Because standing

doctrine comes from Article III’s case-or-controversy

requirement, it is jurisdictional and must be

addressed as a threshold matter.” Kanuszewski, 927

F.3d at 405 (citing Nikolao v. Lyon, 875 F.3d 310,

315 (6th Cir. 2017)). In light of this guidance from

the Sixth Circuit, the Court considers whether

Plaintiffs—not just student Plaintiff H.P.—have

One of the Release and Settlement Agreements discussed

above provides that the AAPS will pay the parents of a student

$3,500 “to compensate Parents for tuition expenses incurred by

the Parents as a result of the Student’s enrollment in private

school.” (ECF No. 54-2, PageID.1452.) During the January 27,

2022 hearing, Plaintiffs’ counsel agreed that H.P.’s parents

received “some tuition reimbursement” through the settlement

at the administrative level. (ECF No. 62, PageID.1830.)

14

A51

standing to pursue their remaining claims and the

relief they seek as to each claim.

As noted, Plaintiffs in this case seek declaratory

and injunctive relief. (See ECF No. 1, PageID.2, 5,

41–43.) Plaintiffs state in their complaint filed on

June 30, 2021 that they “were denied their rights

under [certain state and federal laws] for the 20192020 and 2020-2021 school years by defendants” and

that they “seek declaratory and injunctive relief to

enjoin defendants from violating their procedural

and substantive rights under [these laws].” (Id. at

PageID.2.) The Court now considers whether each of

Plaintiffs’

claims

independently

meets

the

requirements of standing and “whether the alleged

harm [in each claim] affords Plaintiffs standing to

seek

injunctive

and

declaratory

relief[.]”

Kanuszewski, 927 F.3d at 406.

i. Count 1: Systemic Violations of the

Individuals with Disabilities Education Act

(“IDEA”)

In Count 1, Plaintiffs allege that the WISD,

AAPS, and MDE committed “systemic violations” of

the IDEA. (ECF No. 1, PageID.19–22.) The alleged

systemic violations involve (1) the WISD’s and

AAPS’s failure to give Plaintiffs prior written notice

of school closures and alterations of the student

Plaintiffs’ IEPs and school placements, (2) the

WISD’s and AAPS’s failure to maintain the student

Plaintiffs’ pendency placements and to ensure that

“the parents of each child with a disability” were

part of any IEP team that made decisions on

educational placement in March 2020, (3) the

AAPS’s failure to “reconvene IEP Team Meetings to

A52

change [the student P]laintiffs’ IEP[s] to provide for

complete virtual instruction and services,” and (4)

“Defendants[’]”15 failure to ensure that “children

with disabilities had appropriate access to the same

educational opportunities as their nondisabled

peers.” (Id. at PageID.20–22.) Plaintiffs also allege

that the MDE “failed to appropriately monitor and

conduct oversight of its LEAs, including the WISD

and AAPS, to ensure they complied with IDEA’s

procedural safeguards upon the March 2020 closing

of its schools.” (Id. at PageID.20–21.)

Plaintiffs state in Count 1 that “Defendants’

actions have caused plaintiffs’ damages, including

regressions in skills and loss of competencies

regarding the goals and objectives outlined in their

IEPs.” (Id. at PageID.22.) Plaintiffs state that they

seek relief under the IDEA that includes “injunctive

relief declaring that the class members’ pendency

placement is in-person instruction and requiring the

MDE and its LEAs to comply with IDEA in the event

of any future school closures for which the U.S. DOE

does not issue IDEA waivers.” (Id. at PageID.21.)

Plaintiffs have alleged an injury in fact in Count

1 because they allege that they were deprived of

their rights under the IDEA and suffered

“regressions in skills and loss of competencies

regarding the goals and objectives outlined in their

IEPs.” (Id. at PageID.22.) But Plaintiffs lack

standing to pursue a claim for declaratory or

injunctive relief in Count 1 because they do not

allege ongoing or future harm. There is no indication

15 Defendants” appears to refer to the WISD, AAPS, and MDE

because those Defendants are mentioned in the paragraph

immediately preceding the one quoted above. (See ECF No. 1,

PageID.21–22, ¶¶ 150–151.)

A53

in Plaintiffs’ complaint that the alleged IDEA

violations or the regressions in skills and loss of

competencies are an actual or continuing harm, and

Plaintiffs do not allege that they face a “substantial

risk” of future harm. Kanuszewski, 927 F.3d at 405

Plaintiffs state that they seek relief “in the event of

any future school closures” (ECF No. 1, PageID.21);

however, Plaintiffs do not allege that future school

closures are a real or immediate threat.

Instead of relating to actual or future harm,

Plaintiffs’ allegations relate to past violations and

injuries from the two school years that preceded the

filing of their complaint. Plaintiffs’ allegations

involve the AAPS’s closure in March 2020 and the

“alteration of [the student P]laintiffs’ IEPs and

school placements from in-person instruction and

services to virtual instruction or [sic] services,”

among other challenged acts (or failures to act)

related to the March 2020 closure. (Id. at PageID.20;

see id. at PageID.21–22.) Moreover, Plaintiffs do not

allege that the student Plaintiffs were receiving

solely virtual instruction and services when the

complaint was filed on June 30, 2021. Instead,

Plaintiffs indicate in the complaint that A.S., M.S.,

and C.P. received virtual instruction and/or services

at home until May 2021, when the AAPS offered a

hybrid option (see id. at PageID.9, 11, 13), and that

H.P. received virtual instruction and services at

home “until January of 2021 when her mother

placed her in a private school.” (Id. at PageID.15

(emphasis added).) Because Plaintiffs allege past

harm in Count 1, they do not have standing to

pursue declaratory or injunctive relief with respect

to their IDEA claim in this count.

A54

ii. Count 2: Rules 300.324 and 300.518 of the

Michigan Administrative Rules for Special

Education (“MARSE”)

In Count 2, titled “Violation of MARSE §

300.324,” Plaintiffs allege that “defendants16 failed

to provide plaintiffs procedural safeguards upon the

termination of in-person instruction in March of

2020.” (Id. at PageID.22.) Plaintiffs allege that

“Defendants” violated “§ 300.518 of MARSE”17 by

16 Plaintiffs voluntarily dismissed their MARSE claim in Count

2 as to the State Defendants. (See ECF No. 68, PageID.1868.)

As for the AAPS, the Release and Settlement Agreements

between Plaintiffs and the AAPS do not indicate that the

Agreements have no impact on Plaintiffs’ MARSE claim (see

ECF No. 54), so it is unclear whether Plaintiffs continue to

assert this claim against the AAPS.

17 The Court notes that Plaintiffs fail to reference an existing

MARSE Rule in the complaint. The MARSE’s first rule is

“MARSE R 340.1701 Assurance of compliance.” Michigan

Administrative Rules for Special Education (MARSE) With

Related IDEA Federal Regulations, Michigan Department of

Education Office of Special Education (July 19, 2022),

https://www.michigan.gov/documents/mde/MARSE_Supplemen

ted_with_IDEA_Reg s_379598_7.pdf; see Perez, Next Friend of

Perez v. Sturgis Pub. Schs., No. 1:18-cv- 1134, 2019 WL

8105854, at *2 (W.D. Mich. June 20, 2019) (citing the MARSE

as “MARSE Rules 340.1701, [ ]et seq.”), report and

recommendation adopted sub nom. Perez, next friend of Perez v.

Sturgis Pub. Schs., No. 1:18-cv-1134, 2019 WL 6907138 (W.D.

Mich. Dec. 19, 2019), aff’d sub nom. Perez v. Sturgis Pub. Schs.,

3 F.4th 236 (6th Cir. 2021). Therefore, it appears that the

portions of the MARSE that Plaintiffs cite—Rules 300.324 and

300.518—do not exist.

In their response to the WISD Defendants’ motion to

dismiss, Plaintiffs do not contest that their references to the

MARSE are incorrect. (See ECF No. 44, PageID.1023 n.1.)

Plaintiffs state in footnote 1 of their response that the

A55

“fail[ing]

to

comply

with

the

procedural

requirements for prior written notice, educational

placements, pendency placements, IEP Team

Meetings and equal access to instruction and

services for plaintiffs.” (Id.) Plaintiffs state that

“Defendants’ actions caused plaintiffs’ damages,

including regressions in skills and loss of

competencies regarding the goals and objectives

WISD points out that Plaintiffs mistakenly cited MARSE

300.324 and 300.518 in its heading for Count Two of their

Complaint. Plaintiffs will file an Amended Complaint to

correct the heading and any other incorrect citations to

MARSE after the hearing on all defendants’ motions to

dismiss if granted leave to do so by Judge Levy.

(Id.) During the hearing on January 27, 2022, Plaintiffs’

counsel indicated that Count 2 involves “MARSE Rule

340.1701, MARSE Rule 340.1701 A, B, C.” (ECF No. 62,

PageID.1825.) But as of the date of this opinion and order,

Plaintiffs have not sought leave to amend the complaint to

correct their references to the MARSE in Count 2.

Despite this defect in Plaintiffs’ complaint, the Court

conducts a standing analysis as to Plaintiffs’ MARSE claim in

Count 2 as if Plaintiffs had referenced an actual MARSE rule

because the “standing analysis does not consider the merits of

Plaintiffs’ claims.” Kanuszewski v. Mich. Dep’t of Health &

Hum. Servs., 927 F.3d 396, 407 (6th Cir. 2019); see Warth v.

Seldin, 422 U.S. 490, 500 (1975) (stating that “standing in no

way depends on the merits of the plaintiff’s contention that

particular conduct is illegal” (citing Flast v. Cohen, 392 U.S. 83,

99 (1968))); Ariz. State Leg. v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787, 800 (2015) (“[O]ne must not ‘confus[e]

weakness on the merits with absence of Article III standing.’”

(second alteration in original) (quoting Davis v. United States,

564 U.S. 229, 249 n.10 (2011); citing Warth, 422 U.S. at 500)).

Even if Plaintiffs had referenced existing portions of the

MARSE, their allegations in Count 2 do not give them standing

to seek declaratory or injunctive relief as to their MARSE

claim, as discussed above.

A56

outlined in their IEPs.” (Id.) Plaintiffs indicate in

Count 2 that they seek various forms of declaratory

and injunctive relief.18 (See id. at PageID.22–23.)

Plaintiffs do not have standing to pursue declaratory

or injunctive relief with respect to their MARSE

claim in Count 2. Plaintiffs have alleged an injury:

18 Plaintiffs’ request for relief in Count 2 is as follows:

All class members seek injunctive relief requesting that

the Court: 1) Issue a declaratory judgment that the class

members’ pendency placement is in-person instruction and

services; 2) Issue a declaratory judgment that AAPS and

other similarly situated LEAs’ unilateral change of

placement of plaintiffs from in-person instruction and

services to virtual instruction and services violated the

procedural safeguards of MARSE; 3) Issue a declaratory

judgment that the MDE failed to monitor and provide

proper oversight and resources to AAPS and other

similarly situated LEAs during the COVID-19 pandemic

as required under IDEA and MARSE; 4) Order the MDE

and AAPS and other similarly situated LEAs to comply

with the procedural safeguards guaranteed by MARSE for

the 2021-2022 school year for the class members unless

the U.S. DOE issues IDEA waivers; 5) Assign a Special

Monitor to: a) oversee the completion of Independent

Education Evaluations (“IEE”) for all the class members to

determine regressions and loss of competencies due to the

unilateral changes to their IEPs and placements, and

reconvene IEP Team meetings within thirty days of the

completion of the IEEs; b) make expert recommendations

to the Court regarding compensatory education or

pendency payments for the class members to address any

regressions and/or loss of competencies; c) ensure the

expert recommendations are included in writing in the

class members’ IEP documents; and 6) Require the MDE

and AAPS and other similarly situated LEAs to comply

with MARSE in the event of any future school closures for

which the U.S. DOE does not issue IDEA waivers.

(ECF No. 1, PageID.22–23.)

A57

violations of their rights under the MARSE, see

supra note 17, and regressions in skills and loss of

competencies regarding the goals and objectives in

their IEPs. “However, [Plaintiffs] cannot seek

prospective relief because they do not allege a real or

immediate threat that [Defendants] will repeat the

alleged violation.” Kanuszewski, 927 F.3d at 408.

Plaintiffs also cannot seek prospective relief because

they do not allege an ongoing or continuing harm.

Because the injury alleged in Count 2 took place in

the past (i.e., “upon the termination of inperson

instruction in March of 2020” (ECF No. 1,

PageID.22)), Plaintiffs do not have standing to seek

declaratory or injunctive relief as to their MARSE

claim in Count 2.

iii. Count 4: Title II of the Americans with

Disabilities Act (“ADA”)

In Count 4, Plaintiffs allege that the AAPS (and

possibly the MDE) violated Title II of the ADA.

Plaintiffs state that “[t]he MDE and its LEAs are

public entities forbidden to discriminate based on

disability.” (Id. at PageID.26 (citing 42 U.S.C. §

12132).) Plaintiffs state that the AAPS’s

closure of in-person instruction in March of 2020

discriminated against plaintiffs as persons with

disabilities, who necessitate in-person services

including occupational therapy, speech therapy,

social work services and resource room services,

by denying them equal access and otherwise

limiting their access to education, programs, and

services as compared to their non-disabled peers.

34 C.F.R. §§ 104.4(a), 104.4(b)(ii) and (iv).

A58

(Id. at PageID.26–27.) The last sentence in Count 4

states that “[a]s a proximate cause of these

violations of Title II of the Americans with

Disabilities Act, plaintiffs have suffered harm as set

forth above.”19 (Id. at PageID.27.) Plaintiffs allege in

Count 6 (their now-voluntarilydismissed equal

protection claim brought under § 1983) that

“Defendants’ closure of schools in March of 2020

resulted in a disparate impact on plaintiffs due to

their disabilities in violation of the ADA.” (Id. at

PageID.29.)

Plaintiffs do not specify an injury in Count 4.

Nor do they specify the relief they seek in this count.

To the extent Plaintiffs’ allegation of “harm as set

forth above” intends to reference their prior

allegation that Plaintiffs suffered “regressions in

skills and loss of competencies regarding the goals

and objectives outlined in their IEPs” (id. at

PageID.22), this allegation of harm does not give

Plaintiffs standing to pursue declaratory or

injunctive relief for their ADA claim in Count 4 for

the reasons discussed above. To the extent Plaintiffs’

reference to “harm as set forth above” intends to

Plaintiffs’ general allegation in Count 4 that they suffered

“harm as set forth above” lacks the specificity required for

Plaintiffs to show that the first requirement of standing—

injury in fact—is met. See Glennborough Homeowners Ass’n v.

U.S. Postal Serv., 21 F.4th 410, 414 (6th Cir. 2021); Binno v.

Am. Bar Ass’n, 826 F.3d 338, 344 (6th Cir. 2016); Warth v.

Seldin, 422 U.S. 490, 508 (1975). This allegation of “harm as

set forth above” appears in Count 5 as well. (See ECF No. 1,

PageID.27.) Even if the Court considers the possible harms “set

forth above” that Plaintiffs may be referring to in Counts 4 and

5 and finds that Plaintiffs have alleged an injury in fact,

Plaintiffs lack standing to seek declaratory and injunctive relief

as to their claims in Counts 4 and 5, as discussed above.

19

A59

reference Plaintiffs’ allegations of discrimination or

disparate impact20 resulting from a violation of the

ADA, those allegations do not give Plaintiffs

standing to pursue declaratory or injunctive relief as

to their claim in Count 4 either because the

allegations of discrimination and disparate impact

relate to the AAPS’s closure in March 2020, which

took place over two years ago. Plaintiffs make no

allegation of ongoing or future harm in Count 4, so

they lack standing to pursue declaratory or

injunctive relief as to their ADA claim in that count.

iv. Count 5: Michigan Persons with

Disabilities Civil Rights Act (“PWDCRA”)

In Count 5, Plaintiffs allege that the AAPS (and

possibly the MDE) violated the PWDCRA. Plaintiffs

state that under the PWDCRA, “the MDE and its

LEAs” are “educational institutions” that are

prohibited from discriminating against people with

disabilities. (Id. at PageID.27 (internal citation

omitted).) Plaintiffs state that the AAPS’s

closure of in-person instruction in March of 2020

discriminated against plaintiffs as persons with

disabilities, who necessitate in-person services

including occupational therapy, speech therapy,

social work services and resource room services,

20 In Count 4, Plaintiffs allege that they “suffered harm as set

forth above.” (ECF No. 1, PageID.27 (emphasis added).)

Plaintiffs’ allegation regarding disparate impact appears in a

later portion of the complaint and in a subsequent count. (See

id. at PageID.29.) Even if the Court considers disparate impact

as an alleged harm in Count 4, Plaintiffs lack standing to

pursue declaratory or injunctive relief for their ADA claim in

that count, as set forth above.

A60

by denying them equal access and otherwise

limiting their access to education, programs and

services as compared to their non-disabled peers.

M.C.L. § 37.1402.

(Id.) Plaintiffs state that “[a]s a proximate cause of

these violations of the Michigan Persons with

Disabilities Act [sic], plaintiffs have suffered harm

as set forth above.” (Id.) See supra note 19.

In Count 5, Plaintiffs do not clearly allege an

injury or the relief they seek as to their PWDCRA

claim. Plaintiffs’ injury in Count 5 is potentially

them suffering unlawful discrimination under the

PWDCRA, as well as the regressions in skills and

loss of competencies alleged in their previous counts.

These injuries (assuming Plaintiffs intended to

allege them) do not give Plaintiffs standing to seek

the declaratory and injunctive relief they request in

the complaint. Plaintiffs state that the PWDCRA

violation took place in March 2020, and the

regressions in skills and loss of competencies from

the prior two school years are not alleged to be an

actual or future harm. Therefore, Plaintiffs do not

have standing to pursue declaratory or injunctive

relief as to their PWDCRA claim in Count 5.

v. Count 7: Racketeer Influenced and Corrupt

Organizations Act (“RICO”)

In Count 7, Plaintiffs allege a RICO violation.

Plaintiffs indicate in the complaint that Count 7 is

“[a]gainst [the] Individual Defendants.” (ECF No. 1,

PageID.29.) Plaintiffs state that their RICO claim

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arises from a scheme by individual defendants

Swift, Fidishin, Menzel, Norman and Rice, in

their official capacities, to fraudulently use their

enterprises—AAPS,

WISD

and

MDE

respectively—to

defraud

plaintiffs,

the

beneficiaries of IDEA Part B [funds], of millions

of dollars by making false assurances that the

MDE and its LEAs complied with IDEA during

the COVID-19 pandemic.

(Id. at PageID.29, 31; see id. at PageID.30.) Beneath

a heading titled “The Racketeering Violation,”

Plaintiffs allege that

[f]rom March of 2020 through the present, each

individual RICO defendant knowingly and

intentionally engaged in an ongoing pattern of

racketeering activity under 18 U.S.C. § 1962(c)

by committing the predicate acts of wire fraud

and mail fraud . . . . The fraudulent schemes

involved using the interstate wires to defraud

plaintiffs, the beneficiaries of IDEA Part B

Funds, of their procedural and substantive

rights.

(Id. at PageID.32.) The “interstate wires” consist of

“electronic messages and the collection of federal

funds through the interstate banking system, all in

furtherance of the scheme to defraud, and in

violation of 18 U.S.C. § 1343.” (Id. at PageID.33–35,

38.)

Regarding the “false assurances” referenced

above, Plaintiffs allege that Swift, Fidishin, Menzel,

Norman, and Rice made assurances in 2019 and/or

2020 to the WISD, MDE, or U.S. DOE indicating

A62

that (1) the AAPS, WISD, or MDE had “policies and

procedures in place as required by Part B of the

[IDEA],” and (2) “[c]hildren with disabilities and

their parents are afforded the procedural safeguards

required by 34 CFR §§ 300.400 through 300.536 and

in accordance with 20 U.S.C. § 1412(a)(6); 34 CFR[ ]§

300.121.”21 (Id. at PageID.32–37.) Plaintiffs further

allege that in 2019 and 2020, Rice “assured the U.S.

DOE, via mail fraud through interstate commerce,”

that [t]he Chief Executive Officer of a State or

designee of the officer shall ensure that an

interagency agreement or other mechanism for

interagency coordination is in effect between

each public agency described in subparagraph (b)

of 34 CFR § 300.154 and the State education

agency, in order to ensure that the services

described in paragraph (b)(1)(i) that are needed

to ensure a free appropriate public education are

provided, include the provision of such services

during the pendency of any dispute under §

300.154(a)(3).

Plaintiffs allege that Swift and Fidishin (from the AAPS)

made these assurances to the WISD (see ECF No. 1,

PageID.32–33), that Menzel and Norman (from the WISD)

made these assurances to the MDE (see id. at PageID.34), and

that Rice (from the MDE) made these assurances to the U.S.

DOE. (See id. at PageID.35–37.) Plaintiffs do not specify how

Swift, Fidishin, Menzel, and Norman communicated the

assurances, but Plaintiffs state that the “interstate wires” used

by these Defendants include “electronic messages.” (Id. at

PageID.32–35.) Plaintiffs allege that Rice made the assurances

“via mail fraud through interstate commerce.” (Id. at

PageID.35–37.)

21

A63

(Id. at PageID.36–37 (emphasis in original) (internal

citation and quotation marks omitted).)

Plaintiffs state that the individual Defendants’

assurances were false because “[c]ontrary to the[ir] .

. . assurances, the MDE, the WISD and AAPS did

not”:22 (1) “give plaintiffs prior written notice of its

closure of schools and alteration of plaintiffs’ IEPs

and school placements from in-person instruction

and services to virtual instruction or [sic] services

during the COVID-19 pandemic,” (2) “ensure that

the parents of each child with a disability were

included as members of any IEP Team that made

decisions on the educational placement of their

children during the COVID-19 pandemic,” (3)

“maintain plaintiffs’ pendency placement through inperson instruction during the COVID-19 pandemic,”

and (4) “reconvene IEP Team Meetings to change

plaintiffs’ IEPs to provide for complete virtual

instruction and services during the COVID-19

pandemic.” (Id. at PageID.38–39.)

Plaintiffs allege that the MDE collected IDEA

Part B funds from the U.S. DOE “via wire fraud

through interstate commerce.” (Id. at PageID.36–

37.) Plaintiffs allege that Rice “collected” “interstate

wires” (i.e., “electronic messages” and “federal funds

through the interstate banking system”) in 2019 and

2020 and that he continues to collect them “to

further his objective to obtain federal funds under

the false pretense that plaintiffs’ procedural and

substantive rights under IDEA were protected by the

MDE.” (Id. at PageID.38.) Plaintiffs allege that

22 The Court notes that the allegations that follow relate to the

failure of the MDE, WISD, and AAPS to do certain things;

Plaintiffs do not mention the individual Defendants in making

these allegations.

A64

IDEA Part B funds traveled “via wire fraud through

interstate commerce” from the U.S. DOE to the

MDE, “by wire” from the MDE to the WISD, and “by

wire” from the WISD to the AAPS. (Id. at

PageID.36–38.) Plaintiffs allege that the AAPS then

used the IDEA Part B funds “for unlawful purposes,

including but not limited to purchasing personal

protective equipment for all staff and students.” (Id.

at PageID.38.)

As noted, Plaintiffs state that “[f]rom March of

2020 through the present, each individual RICO

defendant knowingly and intentionally engaged in

an ongoing pattern of racketeering activity under 18

U.S.C. § 1962(c) by committing the predicate acts of

wire fraud and mail fraud[.]” (Id. at PageID.32

(emphasis added); see id. at PageID.33 (stating that

Swift “used the interstate wires in the years 2019

and 2020, and is continuing to use them, to further

her objective to obtain federal funds under the false

pretense that plaintiffs’ procedural and substantive

rights under IDEA were protected by AAPS during

its closure” (emphasis added)); see id. at PageID.33–

34 (stating that Fidishin “used the interstate wires

in 2020, and is continuing to use them, to further her

objective to obtain federal funds under the false

pretense that plaintiffs’ procedural and substantive

rights under IDEA were protected by AAPS during

its closure” (emphasis added)); see id. at PageID.35

(stating that Norman used “interstate wires in 2020,

and is continuing to use them, to further her

objective to obtain federal funds under the false

pretense that plaintiffs’ procedural and substantive

rights under IDEA were protected by the WISD

during the closure of AAPS” (emphasis added)); see

id. at PageID.38 (stating that Rice “collected”

A65

interstate wires “in the years 2019, 2020 and [they]

are continuing to be collected, to further his objective

to obtain federal funds under the false pretense that

plaintiffs’ procedural and substantive rights under

IDEA were protected by the MDE” (emphasis

added)).) Plaintiffs state that “[t]here is a threat of

continued activity” because (1) “each individual

defendant has repeatedly engaged in the illegal and

illicit activities,” (2) “[e]ngaging in the pattern of

racketeering activity” presented in the complaint “is

the regular way the individual defendants conduct

the affairs of their respective associated association

in fact enterprises,” and (3) “each enterprise has

been in existence for many years, and the seeking of

federal funding by these individual defendants on

behalf of their associated association in fact

enterprises will continue indefinitely,” so “each

individual defendant, through the operation of his or

her associated association in fact enterprise,

remain[s] a threat to others.” (Id. at PageID.39

(emphasis added).)

Plaintiffs state that the individual Defendants’

conduct deprived— and continues to deprive—

Plaintiffs of their procedural and substantive rights

under the IDEA. (See id. at PageID.32, 40.)

Specifically, Plaintiffs state that “[a]s a direct and

proximate result of the individual defendants’

predicate acts [(i.e., wire fraud and mail fraud)] in

furtherance of violating 18 U.S.C. § 1962(a),

plaintiffs have been and are continuing to be

deprived of their rights under IDEA, as set forth

more fully above.”23 (Id. at PageID.40; see id. at

23 Plaintiffs do not specify which portion of the complaint the

language “as set forth more fully above” refers to. The language

may be referring to the MDE’s, WISD’s, and AAPS’s alleged

A66

PageID.32.) Plaintiffs also state that the individual

Defendants’ acts caused Plaintiffs to “suffer[ ] harm

including significant regressions in skills and loss of

competencies.” (Id. at PageID.40.) Plaintiffs do not

specify the relief they seek in Count 7. Plaintiffs’

request in the complaint’s “Prayer for Relief” that

the Court “[a]ssign a RICO Special Monitor” to carry

out certain tasks (id. at PageID.42) is possibly part

or all of the relief sought to remedy the harms

alleged in Count 7.

Plaintiffs do not demonstrate that they have

Article III standing to bring their RICO claim in

Count 7 because they do not allege facts that

establish all three requirements of standing: injury

in fact, causation, and redressability.

Plaintiffs allege an injury in fact, but their

allegations are insufficient to show causation and

redressability. Plaintiffs allege an injury in fact in

Count 7 because they allege that they have been

deprived of their rights under the IDEA, see supra

note 23, and suffered regressions in skills and loss of

competencies (presumably related to the goals and

objectives in their IEPs). Plaintiffs allege an existing

harm, as well as a “substantial risk” of future harm,

Kanuszewski, 927 F.3d at 405, 409–10, because they

state that the racketeering activity is “ongoing” and

“will continue indefinitely.” (ECF No. 1, PageID.32–

35, 39.) Further, Plaintiffs allege that because of the

failure to do certain things discussed in Count 7 and/or to the

alleged systemic violations of the IDEA that appear in Count 1.

Even if the Court applies one or both of these possible

interpretations to its analysis and finds that Plaintiffs’

allegations in Count 7 sufficiently demonstrate an injury in

fact, Plaintiffs’ allegations do not give them standing to pursue

their claim in Count 7, as discussed above.

A67

individual Defendants’ predicate acts, “plaintiffs

have been and are continuing to be deprived of their

rights under IDEA.” (Id. at PageID.40.) Therefore,

Plaintiffs allege an injury in fact, and the first

requirement of standing is met.

However, Plaintiffs do not demonstrate that the

second and third requirements of standing—

causation and redressability—are satisfied. To

satisfy the causation requirement, Plaintiffs must

show that their injuries are “fairly traceable” to the

challenged acts of the individual Defendants, who

are the Defendants named in Count 7. Buchholz, 946

F.3d at 861. The Sixth Circuit instructs that

[t]he standard for establishing traceability for

standing purposes is less demanding than the

standard for proving tort causation. Pub. Interest

Research Grp. of N.J., Inc. v. Powell Duffryn

Terminals Inc., 913 F.2d 64, 72 (3d Cir. 1990). At

the pleading stage, the plaintiff’s burden of

“alleging that their injury is ‘fairly traceable’” to

the defendant’s challenged conduct is “relatively

modest[.]” Bennett v. Spear, 520 U.S. 154, 171,

117 S. Ct. 1154, 137 L.Ed.2d 281 (1997). Thus,

harms that flow “indirectly from the action in

question can be said to be ‘fairly traceable’ to

that action for standing purposes.” Focus on the

Family v. Pinellas Suncoast Transit Auth., 344

F.3d 1263, 1273 (11th Cir. 2003).

Id. at 866 (emphasis in original).

Here, Plaintiffs do not establish a fairly

traceable connection between their alleged injuries

(i.e., deprivation of their procedural and substantive

rights under the IDEA as well as regressions in

A68

skills and loss of competencies) and the challenged

acts of the individual Defendants (i.e., making “false

assurances” in electronic messages or by mail and/or

collecting IDEA Part B funds through the interstate

banking system). Plaintiffs state that the individual

Defendants’ assurances were false because the MDE,

WISD, and AAPS failed to (1) provide prior written

notice to Plaintiffs, (2) ensure that the parents of

children with disabilities were included in IEP

teams making decisions on educational placement,

(3) maintain the student Plaintiffs’ pendency

placements, and (4) reconvene IEP team meetings to

modify the student Plaintiffs’ IEPs. But Plaintiffs do

not allege that the individual Defendants’

assurances or Rice’s collection of IDEA Part B funds

affected Plaintiffs’ rights under the IDEA or their

“skills” and “competencies.” (ECF No. 1, PageID.40.)

Plaintiffs allege that they were defrauded of

millions of dollars as IDEA Part B funds

beneficiaries. (See id. at PageID.29–31.) But in their

complaint, Plaintiffs do not allege facts indicating

that the individual Defendants deprived Plaintiffs of

IDEA Part B funds or of their rights under the

IDEA. To the extent the IDEA gives Plaintiffs a

right to IDEA Part B funds, Plaintiffs state that the

AAPS—but not the individual Defendants—used

IDEA Part B funds “for unlawful purposes,” such as

to buy personal protective equipment for staff and

students. (Id. at PageID.38.) And Plaintiffs allege

that the MDE, WISD, and AAPS—but not the

individual Defendants—failed to provide prior

written notice and to take certain steps related to

IEPs and educational placement following school

closures, as noted above. Thus, Plaintiffs do not

include factual allegations in the complaint that

A69

indicate that the individual Defendants had any

involvement in the spending of IDEA Part B funds or

in the alleged deprivation of Plaintiffs’ rights under

the IDEA.

Because Plaintiffs do not establish a direct or

indirect connection between their injuries and the

individual Defendants’ predicate acts, Plaintiffs do

not show that their injuries “flow” from the

individual

Defendants’

challenged

conduct.

Buchholz, 946 F.3d at 861. Therefore, Plaintiffs have

not met their burden of showing that the causation

requirement for standing is met.

Even if Plaintiffs had established causation, they

would still lack Article III standing to bring their

RICO claim in Count 7 because they do not satisfy

the redressability requirement. To satisfy the

redressability requirement, Plaintiffs must show

that it is likely, and not merely speculative, that

their injuries will be redressed by a favorable

decision. See Doe v. DeWine, 910 F.3d 842, 850 (6th

Cir. 2018). As noted, Plaintiffs do not specify the

relief they seek as to their RICO claim in Count 7.

To the extent Plaintiffs’ request for the assignment

of a “RICO Special Monitor” relates to Count 7 (ECF

No. 1, PageID.42), Plaintiffs do not demonstrate how

this form of relief would redress Plaintiffs’ injuries.

Plaintiffs indicate that they want the RICO Special

Monitor to (1) oversee an independent audit of

Defendants’ spending of IDEA Part B funds from

March 2020 “to the present,” (2) oversee Defendants’

spending of IDEA Part B funds for the 2021–2022

school year “to ensure defendants spend IDEA Part

B Funds for instruction and/or services for students

with disabilities under IDEA,” and (3) “ensure any

IDEA Part B Funds that defendants spent on items

A70

other than instruction and/or services for students

with disabilities under IDEA from March of 2020

through the present are reimbursed to a monitored

account to be spent only upon review and approval

by the RICO Special Monitor.” (Id.) Plaintiffs do not

show how this request for relief—which seeks to

ensure funding “for instruction and/or services for

students with disabilities under IDEA” (id.

(emphasis added))—will redress any portion of

Plaintiffs’ injuries.

In addition to not demonstrating that the

assignment of a RICO Special Monitor will redress

their injuries, Plaintiffs do not show that granting

this relief will target the individual Defendants’

alleged predicate acts (i.e., wire fraud and mail

fraud) that allegedly caused Plaintiffs’ injuries in

Count 7. (See id. at PageID.40.) “Article III requires

the remedy to be ‘limited’ to the plaintiff’s injury.”

Ass’n of Am. Physicians & Surgeons, 13 F.4th at 540

(quoting Lewis v. Casey, 518 U.S. 343, 357 (1996)).

And the “‘remedy must be “limited to the inadequacy

that produced [a plaintiff’s] injury in fact.”’” Id.

(alteration in original) (quoting Gill v. Whitford, 138

S. Ct. 1916, 1930 (2018)). Here, Plaintiffs want the

RICO Special Monitor to oversee the spending of

IDEA Part B funds by “Defendants”—not just the

individual Defendants named in Count 7. Yet the

complaint does not allege that the individual

Defendants were involved in the spending of IDEA

Part B funds, as noted above. Therefore, instead of

targeting the individual Defendants’ challenged acts

of wire fraud and mail fraud, the request for a RICO

Special Monitor relates to all “Defendants’” spending

of IDEA Part B funds. Such a request for relief is not

limited to Plaintiffs’ injuries alleged in Count 7 or

A71

the individual Defendants’ acts that are alleged to be

the cause of these injuries.

Moreover, to the extent Plaintiffs seek any other

remedy that appears in the complaint (other than, or

in addition to, the assignment of a RICO Special

Monitor), the remaining requests for relief that are

listed in the complaint’s “Prayer for Relief” (ECF No.

1, PageID.41–42) would not be granted by the Court

if it were to issue a favorable decision on Plaintiffs’

RICO claim. These requests are for declaratory and

injunctive relief, and they involve the AAPS, WISD,

and MDE, which are not Defendants named in

Count 7. “An injury is redressable if a judicial decree

can provide ‘prospective relief’ that will ‘remove the

harm.’” DeWine, 910 F.3d at 850 (quoting Warth, 422

U.S. at 505). The Sixth Circuit indicates that

“[r]edress is sought through the court, but from

the defendant. . . . The real value of the judicial

pronouncement—what makes it a proper judicial

resolution of a ‘case or controversy’ rather than

an advisory opinion—is in the settling of some

dispute which affects the behavior of the

defendant towards the plaintiff.”

Id. (emphasis in original) (quoting Hewitt v. Helms,

482 U.S. 755, 761 (1987)). In other words, a

favorable decision on Plaintiffs’ RICO claim in Count

7 would entitle Plaintiffs to relief that “affects the

behavior of” the individual Defendants toward them.

Id. Plaintiffs do not seek relief in the complaint that

would alter the behavior of these Defendants and

redress Plaintiffs’ injuries that are alleged in Count

7. Because Plaintiffs do not show that their injuries

in Count 7 are redressable by a favorable decision

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that will “remove the harm,” id., Plaintiffs do not

satisfy the third requirement for standing as to their

RICO claim. Accordingly, Plaintiffs fail to properly

allege Article III standing with respect to their RICO

claim in Count 7.

C. Dismissal Without Prejudice for Lack of

Subject Matter Jurisdiction

Given that Plaintiffs do not establish that they

have standing as to the remaining counts in this

case (Counts 1, 2, 4, 5, and 7), the Court dismisses

this case without prejudice for lack of subject matter

jurisdiction. The dismissal is without prejudice

because “Article III standing is jurisdictional, and a

federal court lacking subject-matter jurisdiction is

powerless to render a judgment on the merits.”24

24 Court dismisses this case without prejudice for lack of subject

matter jurisdiction; however, the Court seriously considered a

dismissal with prejudice given that Plaintiffs’ claims are highly

unlikely to survive Defendants’ challenges to them based on

other grounds. In their motions to dismiss, Defendants make

various arguments for dismissal that include arguments

related to mootness, Eleventh Amendment sovereign

immunity, the failure to exhaust administrative remedies, and

the failure to state a claim. The Court is doubtful that

Plaintiffs can overcome these hurdles and come out with a

viable case.

As for Plaintiffs’ RICO claim in Count 7, the Court

reminds Plaintiffs’ counsel of Judge Colleen McMahon’s

admonition regarding the RICO claim asserted by the plaintiffs

in J.T. v. de Blasio, 500 F. Supp. 3d 137 (S.D.N.Y. 2020), a case

in which attorneys from Plaintiffs’ counsel’s office represented

the plaintiffs. In J.T., Judge McMahon stated:

Frankly, the RICO allegations here asserted reek of bad

faith and contrivance. Plaintiffs have baldly asserted that

every school district in the country, in trying to respond to

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Thompson v. Love’s Travel Stops & Country Stores,

Inc., 748 F. App’x 6, 11 (6th Cir. 2018) (internal

citations omitted) (“[O]ur court has stated on several

occasions that dismissal for lack of subject matter

jurisdiction should normally be without prejudice.”

(collecting cases)); see Marks, 2022 WL 866836, at *6

(dismissing a case “without prejudice for lack of

subject matter jurisdiction” because a plaintiff did

not “sufficiently allege[ ] Article III standing”).

IV. Conclusion

For the reasons set forth above, this case is

DISMISSED WITHOUT PREJUDICE for lack of

subject matter jurisdiction. Defendants’ motions to

dismiss (ECF Nos. 20, 34, 38) and Plaintiffs’ motion

for an automatic and preliminary injunction (ECF

No. 42) are DENIED AS MOOT.

IT IS SO ORDERED.

an unprecedented nationwide health crisis, has

perpetrated a fraud on the federal government. They have

not the slightest basis for so asserting. Their use of the

phrase “on information and belief” does not save this

patently defective pleading. See First Asset Capital Mgmt.,

385 F.3d at 179 (“Although it is true that matters

peculiarly within a defendant’s knowledge may be pled ‘on

information and belief,’ this does not mean that those

matters may be pled lacking any detail at all.”) (internal

citation and quotation marks omitted). This effort to inject

racketeering into what is simply an IDEA lawsuit is bad

faith pleading writ large.

J.T., 500 F. Supp. 3d at 172. Judge McMahon’s findings

regarding the plaintiffs’ RICO allegations in J.T. may very well

apply to Plaintiffs’ RICO allegations in Count 7 of the

complaint filed in this case.

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Dated: July 22, 2022

Ann Arbor, Michigan

s/Judith E. Levy

JUDITH E. LEVY

United States District Judge

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FILED: June 12, 2023

No. 22-1724

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA C. SIMPSON-VLACH AND ALAN SIMPSONVLACH ON BEHALF OF A.S. AND M.S.; KATHY

BISHOP AND CHRISTOPHER PLACE ON

BEHALF OF C.P. AND H.P.,

Plaintiffs-Appellants,

v.

MICHIGAN DEPARTMENT OF EDUCATION;

ANN ARBOR PUBLIC SCHOOLS; WASHTENAW

INTERMEDIATE SCHOOL DISTRICT; DR.

JEANICE KERR SWIFT; DR. MARIANNE

FIDISHIN; SCOTT A. MENZEL; NAOMI NORMAN;

MICHAEL F. RICE,

Defendants-Appellees.

ORDER

BEFORE: COLE,

Circuit Judges.

GIBBONS,

and

READLER,

The court received a petition for rehearing en

banc. The original panel has reviewed the petition

for rehearing and concludes that the issues raised in

the petition were fully considered upon the original

submission and decision of the case. The petition

then was circulated to the full court.* No judge has

requested a vote on the suggestion for rehearing en

banc.

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Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/ Deborah S. Hunt, Clerk

*Judge Davis recused herself from participation in

this ruling.