hearing and any attendant appeals have been completed. I find,
however, that the plaintiff lacks standing to raise this issue
and is therefore not the proper party in interest to bring this
matter before this Court.
A plaintiff may properly invoke the power of the federal
judiciary only when it has standing to sue. This requirement of
standing arises out of constitutionally imposed limitations on
federal court jurisdiction as well as certain prudential
considerations regarding its exercise. Valley Forge Christian
College v. Americans United For Separation of Church and State,
Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700
(1982); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,
2205, 45 L.Ed.2d 343 (1975). "In both dimensions . . .
[standing] is founded . . . [upon a] concern about the proper
— and the properly limited — role of the courts in a
democratic society." Warth, 422 U.S. at 498, 95 S.Ct. at 2205.
To satisfy constitutionally imposed limits on standing, a
plaintiff must allege that it has suffered some actual or
threatened injury which is redressable by the court and which
is fairly traceable to the challenged action. Valley Forge
Christian College, 454 U.S. at 472, 102 S.Ct. at 758;
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99
S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). This requirement of an
alleged "injury in fact" "eliminate[s those] claims in which
the plaintiff has failed to make out a case or controversy
between himself and the defendant," Gladstone, Realtors, 441
U.S. at 99, 99 S.Ct. at 1607, and "assure[s] that concrete
adverseness which sharpens the presentation of issues upon
which the court[s] so largely depend[ ] for [the] illumination
of difficult constitutional" and statutory issues, Baker v.
Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663
Even when a case satisfies this constitutional limitation, a
plaintiff may still lack standing under certain judicially
imposed prudential considerations by which the courts seek "to
avoid deciding questions of broad social import where no
individual rights would be vindicated." Gladstone, Realtors,
441 U.S. at 99-100, 99 S.Ct. at 1607-08. A plaintiff lacks
standing, for example, where it attempts to assert the legal
interest of a third party, or where it attempts to assert a
right which does not at least "`arguably [fall] within the zone
of interests . . . protected or regulated' by the statutory
framework within which its claim arises." Gladstone, Realtors,
441 U.S. at 100 n. 6, 99 S.Ct. at 1608 n. 6 (quoting Simon v.
Eastern Kentucky Welfare Rights Org. 426 U.S. 26, 39 n. 19, 96
S.Ct. 1917, 1925 n. 19, 48 L.Ed.2d 450 (1976); Data Processing
Service v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829-30, 25
L.Ed.2d 184 (1969)); see also In Re Application of Dow Jones
and Co., Inc., 842 F.2d 603, 606 (2d Cir. 1988). The defendant
argues that Seneca Falls does not have standing here because it
has failed to allege a cognizable injury and because its
asserted interest is not one protected under the EHA.
To satisfy the critical constitutional test of personal
injury in fact, the plaintiff must allege that it has suffered
"a distinct and palpable injury," Warth, 422 U.S. at 501, 95
S.Ct. at 2206, which was caused by the defendant's putatively
illegal conduct and which is likely to be redressed if the
requested relief is granted, Valley Forge Christian College,
454 U.S. at 472, 102 S.Ct. at 758; Gladstone, Realtors, 441
U.S. at 100, 99 S.Ct. at 1608. It is not enough that some
injury might occur in the future; the harm must be "real and
immediate," not "conjectural" or hypothetical. O'Shea v.
Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674
(1974); Golden v. Zwickler, 394 U.S. 103, 109-110, 89 S.Ct.
956, 960, 22 L.Ed.2d 113 (1969).
Seneca Falls argues that any release of Joseph will subject
it to civil liability for failure to comply with the EHA's
"status quo" and "free appropriate public education"
provisions. While an immediate or inevitable threat of suit may
constitute an "injury in fact" for standing purposes,
O'Shea, 414 U.S. at 496-97, 94 S.Ct. at 676; Steffel v.
Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d
505 (1974); Caribbean Marine Services Co., Inc. v. Baldrige,
844 F.2d 668, 675 (9th Cir. 1988), I find the risk of civil
liability here to be too attenuated and conjectural to satisfy
this constitutional prerequisite. "Multiple contingencies"
would have to occur before the plaintiff would be exposed to
any risk of economic harm, making the threat of liability
merely "potential" rather than "inevitable." See Baldrige, 844
F.2d at 675; City of South Lake Tahoe v. California Tahoe
Regional Planning Agency, 625 F.2d 231, 239 (9th Cir.), cert.
denied, 449 U.S. 1039, 101 S.Ct. 619, 66 L.Ed.2d 502 (1980).
Seneca Falls might incur an actual injury only if Liverpool
were permitted to unilaterally exclude Joseph, if no other
appropriate program existed upon his release, and if Joseph's
parents subsequently threatened to sue. See O'Shea, 414 U.S. at
497, 94 S.Ct. at 676 (no standing where injury will occur only
"if respondents proceed to violate unchallenged law, and if
they are charged, held to answer, and tried in any proceedings
before petitioners" (emphasis in original)). While Liverpool
may indeed be allowed to remove Joseph unilaterally, it is far
from clear that "no other appropriate placement exists."
See Plaintiff's Complaint at ¶ 21. In ¶ 15 of its complaint,
the plaintiff acknowledges that it has recommended an
alternative BOCES program in Newark which it undoubtedly
presumes satisfies Joseph's specialized needs. While the
appropriateness of this placement must ultimately be resolved
by an impartial hearing officer, the contingent nature of this
determination renders the plaintiff's interest attenuated at
Even if there were no other appropriate placement, there is
no indication that the plaintiff would subsequently be
threatened with litigation. While Joseph's parents have voiced
their opposition to his transfer, the plaintiff has failed to
allege, nor is there any reason to believe, that a threat of
suit would be either imminent or inevitable should Liverpool
remove Joseph from its classrooms. I therefore find the risk of
injury alleged here far too speculative to satisfy the
jurisdictional limitations imposed upon this Court by Article
Even had the plaintiff properly alleged a direct or
imminently threatened injury-in-fact, I find that its claim
does not fall within the zone of interests intended to be
protected by the EHA. Association of Data Processing Service
Organizations, 397 U.S. at 153, 90 S.Ct. at 830; In Re
Application of Dow Jones and Co., Inc., 842 F.2d at 606.
Although LEA's such as Seneca Falls play an important role in
implementing the EHA, the procedural safeguards at issue here
are clearly designed for the benefit of handicapped children
and their parents as means of ensuring a handicapped child's
right to a free appropriate public education. Honig v. Doe,
484 U.S. 305, 108 S.Ct. 592, 606, 98 L.Ed.2d 686 (1988) ("many of
the EHA's procedural safeguards protect the rights of parents
and school children"); Andrews v. Ledbetter, 880 F.2d 1287,
1289 (11th Cir. 1989); 20 U.S.C. § 1415(a)-(b)(2). Under the
Act's regulatory scheme, LEA's are accorded only a limited
procedural right to appeal the findings and decision rendered
in an impartial hearing, which itself can be initiated in the
first instance only by the child's parents or guardians. See
20 U.S.C. § 1415(a), 1415(b)(1), 1415(e)(2); 34 C.F.R. § 300.506.
Nothing in the EHA "indicates that Congress intended to grant
an LEA [such as Seneca Falls] statutory standing
to bring suit to compel . . . [another] agency to fulfill its
statutory duties." Andrews, 880 F.2d at 1290.
I find plaintiff's reliance on the Supreme Court's recent
decision in Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98
L.Ed.2d 686 (1988), unpersuasive in this regard. In that case,
the Court refused to read an exception into the Act's so-called
"stay put" provision of § 1415(e)(3) that would allow a state
or LEA to unilaterally exclude disabled children from the
classroom for dangerous or disruptive conduct. 108 S.Ct. at
604-05. The Court observed that school officials had adequate
alternative procedures available for dealing with disruptive
children, including "an opportunity to invoke the aid of the
courts under § 1415(e)(2), which empowers . . . [them] to grant
any appropriate relief." Id. at 605. However, as the Eleventh
Circuit noted in Andrews v. Ledbetter, the Supreme Court's
holding in this case was itself "confined to the specific
context of disputes involving IEPs of particular children . . .
[and i]n no way . . . indicate[d] that the power of . . .
district courts to effect equitable relief in these
well-defined statutory-back actions extend[s] to a suit seeking
broad injunctive relief and lacking statutory basis." Andrews,
880 F.2d at 1290. The Eleventh Circuit accordingly concluded on
an analogous set of facts that an LEA has no standing to
challenge the EHA policies of a state educational agency which
allegedly might expose the LEA to the threat of litigation for
failure to meet its statutory obligations. Similarly, I find
that the plaintiff Seneca Falls, also an LEA, lacks standing to
invoke the EHA's stay put provision to prevent Liverpool,
another LEA, from removing Joseph from its specialized program.
Accordingly, the plaintiff's motion for preliminary injunction
is denied and its complaint is dismissed.
ALL OF THE ABOVE IS SO ORDERED.