In Donohue v. Lloyd, No. 18-CV-9712 (JPO), 2020 WL 2834207, 120 LRP 17087 (S.D.N.Y. June 1, 2020), Judge Oetken dismissed a parent’s case against an impartial hearing officer, the City of New York, New York State, the Board of Regents, and the New York State Education Department. According to the opinion, the case was brought on behalf of a student with severe brain injuries who is nonverbal, non-ambulatory, and dependent on assistance for daily life activities. The student’s father challenged her proposed IEP in a due process proceeding before Impartial Hearing Officer Michael Lloyd. Before the hearing began, the father requested that the hearing be held in a location large enough to accommodate more than 100 of the student’s supporters, many of whom used wheelchairs or other bulky equipment. The IHO scheduled the hearing in a room that would accommodate some observers, but not as many as the father anticipated would attend. The father requested adjournment until a larger space could be found, but the request was denied, as was a request to a federal court for an injunction against the hearing going forward.

At the beginning of the hearing, the IHO also denied a request that audio and visual media be permitted in the hearing. According to the Donohue v. Lloyd opinion,

IHO Lloyd stated that he had “made a determination that television cameras with live recording … would be abusive [to the student (S.J.D.),] who is unable to give her consent.” See Reuven Fenton & Emily Saul, School Hearing for Disabled Girl Turns Into a Screaming Match, N.Y. Post (Oct. 16, 2018), He reasoned that visual recordings without S.J.D.’s consent would “border on child abuse” and “potentially be embarrassing to the child.” Id. The subtext of IHO Lloyd’s comment, Plaintiffs allege, is that “children with severe disabilities should be hidden away from view instead of allowing them to be photographed and filmed.” (Compl. ¶ 67.) The hearing thereafter escalated, but IHO Lloyd declined to recuse himself or retract the statements. (Compl. ¶¶ 70–72.).

Id. at *2.

The father and student sued the IHO and the other defendants in federal court, seeking injunctive relief and damages for alleged violations of Title II of the Americans With Disabilities Act, Section 504 of the Rehabilitation Act, New York State Human Rights Law, New York City Human Rights Law, and common law.

In dismissing the damages claims against the IHO, the court reasoned that due process hearing officers are protected by absolute immunity because they act in a judicial role. The opinion stated,

Judicial officers are immune from liability for damages for “acts committed within their judicial jurisdiction.” Pierson v. Ray, 386 U.S. 547, 554 (1967). Because absolute judicial immunity is not for protection of the judge, but rather “for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences,” Id. (citation omitted), it applies to shield judges against even “[a]llegations of bad faith[,] … malice [or] that the officer acted ‘in error … or was in excess of his authority.'” Mireles v. Waco, 502 U.S. 9, 11, 13 (1991) (quoting Stump v. Sparkman, 435 U.S. 349, 355-56 (1978)) (second omission in original). Immunity yields only in cases challenging “nonjudicial actions, i.e., actions not taken in the judge’s judicial capacity.” Id. at 11.”

“Courts in this Circuit have repeatedly found Impartial Hearing Officers and the State Review Officers who review their decisions to be among the administrative adjudicators entitled to absolute immunity.” Id. at *3 (collecting cases). Although actions taken in a non-judicial capacity are not covered by absolute immunity, “The challenged conduct here consists of allegedly erroneous and discriminatory decisions that cameras would not be permitted in the hearing room and that the hearing would not be adjourned until a different room was found. Case management decisions like those are quintessentially judicial activities, and there is no serious argument that IHO Lloyd’s jurisdiction to make those decisions was lacking.” Id.

Judicial immunity does not shield hearing officers and other adjudicators from claims for injunctive and other non-damages relief, but the court in a footnote pointed out that the claim for injunctive relief against the IHO to require him to permit audio and visual media at the hearing was moot because the IHO had recused himself from the case after the federal complaint was filed. Id. at n.2 (also relying on failure to exhaust).

In dismissing the case against the other defendants, the court relied on exhaustion doctrine, noting that claims under the ADA and Section 504 may be barred for failure to exhaust through an appeal to the state review officer, even if the claims are for damages. After citing Cave v. East Meadow Union Free School District, 514 F.3d 240, 246 (2d Cir. 2008), and two other cases, though perhaps oddly, not mentioning Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), or 20 U.S.C. § 1415(l), the court stated:

Here, the gravamina of Donohue and S.J.D.’s complaint are that IHO Lloyd’s refusal to permit cameras and to accommodate all the anticipated attendees at the hearing deprived S.J.D. of her right to an open hearing and that IHO Lloyd’s rationale for that decision was discriminatory. The underlying right to an open hearing is grounded in the IDEA itself, which prescribes specific procedural protections. See, e.g., Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 54 (2005) (describing the statutorily mandated “central components of due process hearings” under the IDEA). A challenge to a decision regarding the procedural features of Plaintiffs’ hearing under the IDEA was therefore well within the SRO’s bailiwick, and a full remedy for Plaintiffs’ injury available by way of administrative appeal.

Id. at *4. The court further ruled that the failure exhaust barred federal jurisdiction, so the pendent state-law claims would also be dismissed.