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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
THE ARC OF IOWA et al.,
Plaintiffs,
v.
KIM REYNOLDS, in her official
capacity as Governor of Iowa, et al.
Defendants.
Case No. 4:21-CV-00264-RP-SBJ
Defendants Governor Kim
Reynolds and Ann Lebo’s Reply in
Support of their Motion to Dismiss
TABLE OF CONTENTS
I.
Plaintiffs have abandoned most—if not all—of their case; at the very least,
their claim under ARPA and all requests for injunctive relief should be
dismissed. ........................................................................................................... 1
II. The exhaustion requirement is not affected by a Plaintiff’s lack of an IEP
and is not futile. ................................................................................................. 3
I.
Plaintiffs have abandoned most—if not all—of their case; at the very
least, their claim under ARPA and all requests for injunctive relief
should be dismissed.
In their resistance to the State’s motion to dismiss, Plaintiffs abandon most of
their complaint. They offer no argument against dismissing their claim under the
American Rescue Plan Act. See Resist. to Mtn. to Dismiss, Doc. 95, at 1–19. Indeed,
they don’t even mention the claim. See id. Or cite that statute. See id. at vi. The Court
should thus dismiss the claim. See LR 7(e) (requiring resistance to Motion to
“contain[] a statement of the grounds for resisting the motion and citations to the
authorities upon which the resisting party relies”).
And their only argument against the case being moot is that they’re now
seeking a declaratory judgment in their summary judgment motion. See Resist. to
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Mtn. to Dismiss, Doc. 95, at 8 (“Nothing in the Eighth Circuit’s order addresses
Plaintiffs’ claims for declaratory relief, which have not been adjudicated by this Court
or any other.”); id. at 9 (“[A] claim for preliminary injunctive relief is evaluated under
a different legal standard and reflects a fundamentally different form of relief than
declaratory relief. . . . “Plaintiffs’ declaratory claims are not settled: Plaintiffs
presented full argument on them for the first time on July 1, 2022.”); id. at 10
(arguing against applying the law-of-the-case doctrine “to foreclose declaratory
claims” only). Plaintiffs offer no defense of any of the injunctive relief that they seek
in their complaint. Plaintiffs’ requests for injunctive relief should thus also be
dismissed.
Plaintiffs’ reliance on their newly requested declaratory relief as the basis for
surviving mootness suffers from another problem. See Resist. to Mtn. to Dismiss, Doc.
95, at 1–2, 8–10. In their motion for summary judgment, they seek relief that they
don’t ask for in their complaint and is not based on the claims on their complaint. See
Resist. to Mtn. for Summary Judgment, Doc. 99, at 6–8. It thus cannot provide a basis
for defending the claims, even the declaratory claims, that they assert in their
complaint. They no longer seek a declaratory judgment that section 280.31 violates
any federal law. Pltfs’ Mtn. for Summary Judgment, Doc. 88, at ¶ 2 (describing
requested declaratory judgment); Resist. to Mtn. to Dismiss, Doc. 95, at 1–2, 8–10
(relying on this declaratory judgment as their surviving claim). Thus they have
essentially abandoned all their claims that they’ve actually asserted in their
complaint. See Alexander v. Hedback, 718 F.3d 762, 766 (8th Cir. 2013) (affirming
dismissal where party abandons claims as pleaded in the complaint in favor of
alternative claims argued in their briefing). Plaintiffs’ complaint should all be
dismissed.
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II.
The exhaustion requirement is not affected by a Plaintiff’s lack of an
IEP and is not futile.
Most of the parties’ exhaustion arguments have been well fleshed our and do
not need further reply. But in their resistance, Plaintiffs now contend that exhaustion
doesn’t apply because they aren’t seeking to modify an IEP and that some students
don’t have an IEP. Resist., Doc. 95, at 13.
But this contradicts the Eighth Circuit’s decision in Nelson v. Charles City
Cmty. Sch. Dist., 900 F.3d 587 (8th Cir. 2018), which rejected any requirement that
a plaintiff must have invoked IDEA’s remedies by obtaining an IEP. See id. at 592–
93. Plaintiffs have never argued that they wouldn’t qualify for relief under the IDEA.
And even if students hadn’t previously done so—it’s not that extraordinary to expect
that they should seek an IEP in the midst of a pandemic that they claim is destroying
their education before rushing to court.
Nor would exhaustion be futile here. Plaintiffs contend otherwise because an
agency administrative law judge could not grant their declaratory judgment that they
now seek. Resist., Doc. 95, at 13. But no such issue would be present in deciding
whether Plaintiffs were receiving a FAPE, since—as the Eighth Circuit agreed—
section 280.31 allows compliance with federal disability law. Arc of Iowa, 33 F.4th at
1045. And if Plaintiffs were dissatisfied with the ultimate resolution of that process,
then they could seek judicial review with a robust record.
Finally, in urging the court to overlook the exhaustion requirement, Plaintiffs
point to a few other district courts that have held it’s not required for similar claims.
See Resist., Doc. 95, at 10. But they ignore the only published circuit court decision,
E.T. v. Paxton, 19 F.4th 760 (5th Cir. 2021). There, the Fifth Circuit persuasively held
that exhaustion likely is required. See id. at 767. The Court should follow E.T.
Plaintiffs’ complaint is explicitly tied to a deprivation of their educational needs. They
contend that they’re deprived their education because they’re not able to safely attend
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in-person school without a mask mandate and the alternative of virtual school is
inadequate. Compl., Doc. 1, at ¶¶ 56–59. Plaintiffs’ claimed discrimination is thus an
injury that is allegedly denying them a FAPE. That injury could be remedied by
granting relief under the IDEA. Exhaustion was thus required.
CONCLUSION
For all these reasons, and those in the original brief supporting the State’s
Motion to Dismiss, this case should be dismissed.
Respectfully submitted,
THOMAS J. MILLER
Attorney General of Iowa
JEFFREY S. THOMPSON
Solicitor General
/s/ Samuel P. Langholz
SAMUEL P. LANGHOLZ
Assistant Attorney General
Iowa Department of Justice
1305 E. Walnut Street, 2nd Floor
Des Moines, Iowa 50319
(515) 281-5164
(515) 281-4209 (fax)
sam.langholz@ag.iowa.gov
jeffrey.thompson@ag.iowa.gov
ATTORNEYS FOR DEFENDANTS
GOVERNOR KIM REYNOLDS AND
ANN LEBO
PROOF OF SERVICE
The undersigned certifies that the foregoing instrument was
served upon all parties of record by delivery in the following
manner on August 5, 2022:
U.S. Mail
Email
Hand Delivery
Overnight Courier
Federal Express
Other
CM/ECF
Signature: /s/ Samuel P. Langholz
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