Non-Final Pendency Orders Are Not Automatically Enforceable, Magistrate Judge Rules in NYC DOE Case

MANHATTAN (LN) — U.S. Magistrate Judge Sarah L. Cave denied a motion for civil contempt against the New York City Department of Education on Wednesday, ruling that a non-final pendency order from an independent hearing officer does not automatically become an enforceable court order during an ongoing appeal.

The dispute centers on a September 2025 order directing the DOE to pay tuition to the International Institute of the Brain and transportation costs to Sisters Travel and Transportation. Plaintiff Eileen Mendez, acting as parent and natural guardian of student A.C., argued that a subsequent preliminary injunction by U.S. District Judge Colleen McMahon effectively incorporated the hearing officer’s directive into a binding court order.

Mendez sought to hold the DOE in contempt after the agency ceased further payments, despite acknowledging that the DOE had previously paid about $0.18 million for tuition and $95,000 for transportation.

The DOE opposed the motion, arguing that the pendency order was under review by a State Review Officer and therefore not final. The agency maintained that the student’s placement school remained assured and that no irreparable harm had occurred.

Cave rejected the plaintiff’s argument, noting that contempt requires a violation of a "definite and specific order of the court." She found that even if the preliminary injunction incorporated the pendency order, the student’s placement remained "assured" and not in jeopardy.

"Particularly given Defendants’ counsel's representations at the Conference that the child's placement at iBrain remains intact... Plaintiff has not provided any evidence that the child's placement at iBrain is 'at risk,'" Cave wrote.

The magistrate judge also cited other district courts in the Southern District of New York, which have recognized that it is inappropriate to require the DOE to pay the full balance of a pendency order while appeals remain pending before a State Review Officer.

The court further ordered the witnesses to provide a supplemental disclosure separating payroll and insurance costs by May 1, 2026.

The DOE has appealed the underlying pendency decision, and the scope of its payment obligations remains under review by the State Review Officer.

The case also involves a summary judgment motion currently pending before Judge McMahon.