FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 12, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court STEVEN R.F., a minor by and through his mother Carrie Fernandez,
Plaintiff - Appellee,
v. No. 18-1327 (D.C. No. 1:17-CV-00629-RBJ) HARRISON SCHOOL DISTRICT NO. 2, (D. Colo.) and various of its elected and appointed representatives in their official capacities,
Defendant - Appellant. _________________________________
ORDER _________________________________
Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges. _________________________________
This matter is before the court to correct clerical errors related to the inclusion of
record citations in the Opinion issued on May 28, 2019. Specifically, the Clerk is directed
to substitute the version of the decision attached to this order for the version issued
previously. The revised version removes the record citations, and is otherwise exactly the
same.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 28, 2019
Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court _________________________________
STEVEN R.F., a minor by and through his mother Carrie Fernandez,
v. No. 18-1327
HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities,
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-00629-RBJ) _________________________________
John R. Stanek, Anderson, Dude, and Lebel, Colorado Springs, Colorado (William K. Dude, Anderson, Dude, and Lebel, Colorado Springs, Colorado, and W. Stuart Stuller, Caplan & Ernest, LLP, Boulder, Colorado, with him on the briefs), appearing for Appellant.
Michael C. Cook, Cook Varriano, P.C., Colorado Springs, Colorado, appearing for Appellee. _________________________________
Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges. _________________________________
BRISCOE, Circuit Judge. _________________________________
In this appeal, Defendant-Appellant Harrison School District No. 2 asks us to reverse the district court’s ruling that it violated the Individuals with Disabilities
Education Act (IDEA) by failing to provide Plaintiff-Appellee Steven R.F. with a free
appropriate public education. Because we conclude that the case is moot, we dismiss this
appeal, vacate the district court’s ruling, and remand with instructions to dismiss as moot.
I
The IDEA provides federal funds to states for educating children with disabilities,
guaranteeing disabled children between the ages of three and twenty-one access to a free
appropriate public education (FAPE). 20 U.S.C. §§ 1400(d), 1412(a)(1). A FAPE
“emphasizes special education and related services designed to meet [the child’s] unique
needs.” Id. § 1400(d). A child’s individualized education program (IEP) governs how a
school will provide him or her a FAPE. See id. § 1414(d)(1)(A). The IEP is a written
statement developed in a meeting attended by the student’s parents, teacher, and a special
education professional that summarizes the student’s abilities, outlines goals for the
student’s education, specifies the services the student will receive to achieve those goals,
and establishes criteria to evaluate the student’s progress. Id. § 1414(d)(1).
The IDEA also requires state and local educational agencies receiving funding
under the Act to “establish and maintain procedures . . . to ensure that children with
disabilities and their parents are guaranteed procedural safeguards with respect to the
provision” of a FAPE. Id. § 1415(a); see also Honig v. Doe, 484 U.S. 305, 311–12
(1988). For example, the IDEA requires that a child’s parents be notified by the school
district of any proposed change to the child’s educational placement. 20 U.S.C.
§ 1415(b)(3). It also requires that the parents be permitted to participate in discussions
2 relating to their child’s evaluation and education. Id. § 1414(d)(1)(B)(i). And it requires
states to allow parents the opportunity to bring a complaint about “any matter relating to
the identification, evaluation, or educational placement of [their] child, or the provision
of a [FAPE] to such child.” Id. § 1415(b)(6).
II
Steven R.F. is a fourteen-year-old boy with severe autism. In 2013, the District
agreed to place Steven at the Alpine Autism Center, a private out-of-district facility in
Colorado Springs.
In 2014, the District proposed to move Steven from Alpine to a public school
called the School of Excellence (SOE) for the 2014–2015 schoolyear. Steven’s mother,
Carrie Fernandez (Mother), objected and filed a state complaint asserting various IDEA
violations. After an investigation, the State Complaint Officer (SCO) agreed with Mother
and issued a written decision (2014 SCO Order). As a remedy, the SCO ordered, among
other things, that the District could not change Steven’s placement until: (1) staff
members from any new placement “proposed by” the District “have observed [Steven] . .
. at [Alpine] to understand the nature of [his] educational and behavioral functioning” and
(2) the District “convenes an IEP meeting, facilitated by a neutral facilitator (not
employed by the School District) . . . and develops an IEP that includes a description of
placement sufficient to allow [Mother] to understand what is being proposed.” App.,
Vol. II at 618. Steven remained at Alpine for the 2014–2015 and 2015–2016
schoolyears.
On March 29, 2016, and April 5, 2016, the District held Steven’s IEP meeting for
3 the 2016–2017 schoolyear. The IEP meeting was facilitated by the District’s school
psychologist, Michelle McFall. Toward the end of the meeting, after agreeing on
required aspects of the IEP, the attendants discussed what facility Steven would attend.
Amy Lloyd, the District’s special education coordinator, proposed three alternatives:
Roundup Fellowship, Alpine, and the SOE. The team decided on the SOE, over
Mother’s objection. At the time of the IEP meeting, no staff members from either the
SOE or Roundup had observed Steven at Alpine.
After the meeting, McFall prepared a “Prior Written Notice of Special Education
Action” summarizing the IEP Team’s discussions and decisions. The notice identified
the SOE as Steven’s placement for 2016–2017, but did not identify which program within
the SOE Steven would attend.
The SOE is a public school operated by Pikes Peak Board of Cooperative
Educational Services. The SOE has two programs relevant in this case: the
Communication and Language program (COLA) and the Learning Independence by
Educating Responsible Trustworthy Youth program (LIBERTY). COLA is designed for
students who have significant behavior issues and who are largely unable to work
independently. LIBERTY is designed for students with either an autism spectrum
diagnosis or a dual diagnosis and who are generally able to express their wants and needs
and are able to work in small groups. The District believed that either program could
have implemented Steven’s IEP.
On May 5, 2016, Mother filed another state complaint alleging that the District
violated the 2014 SCO Order by changing Steven’s educational placement and by not
4 utilizing a neutral facilitator for his 2016 IEP meeting. She also asserted that the
District’s placement decision of the SOE was not based on Steven’s individual needs, that
the District wrongfully predetermined Steven’s placement, and that the District did not
make a written offer of educational placement. After an investigation, the SCO ruled, as
relevant, that the District had violated the 2014 SCO Order by not utilizing a neutral
facilitator for Steven’s 2016 IEP meeting, and that the District’s decision to move Steven
to the SOE was predetermined and not based on Steven’s individual needs.
The District challenged the SCO decision by filing a due process complaint with
the Colorado Office of Administrative Courts pursuant to 20 U.S.C. § 1415(f). The
District sought a determination that its proposal to transfer Steven to the SOE for the
2016–2017 schoolyear was an appropriate offer of FAPE. The Administrative Law
Judge deciding the complaint concluded that the “District made an offer of FAPE, and
that any procedural violations that may have occurred did not deprive [Steven] of FAPE
or educational benefit, and did not deprive [Mother] of her right to meaningfully
participate in the decision-making process.” App., Vol. II at 439.
Mother appealed the ALJ’s determination to federal district court pursuant to 20
U.S.C. §§ 1415(i)(2)(A) and (3)(A) and 34 C.F.R. § 300.516(b) and asked the district
court to find that the 2016–2017 IEP denied Steven the FAPE to which he is entitled.
She asserted that the District violated the IDEA by: (1) not complying with the terms of
the 2014 SCO Order; (2) not identifying Steven’s proposed educational placement
(COLA or LIBERTY) in his 2016–2017 IEP; (3) predetermining Steven’s placement in
5 the SOE; and (4) creating an IEP not based on Steven’s individual needs.1 After merits
briefing, the district court concluded that the District had violated the 2014 SCO Order
and various procedural protections within the IDEA, and that these violations amounted
to the denial of a FAPE. Specifically, the district court ruled, as regards Steven’s 2016
IEP: (1) the District failed to include a specific offer of educational placement; (2) the
District failed to comply with the requirements of the 2014 SCO Order,2 which were
designed to protect Mother’s right to a “fair IEP meeting,” which includes “a clear offer
of educational placement” and “meaningful participation in the IEP process,” App., Vol.
1 Mother also asserted a claim for a violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. The district court concluded that the District did not violate the Rehabilitation Act, and Mother does not appeal that ruling. 2 The 2014 SCO Order prohibited the District from changing Steven’s educational placement until:
a. The School District conducts [a] comprehensive evaluation[] of [Steven], in accordance with the requirements of IDEA;
b. Staff members from any new placement proposed by the School District, which staff would have responsibility for providing special education and related services to [Steven] have observed [him] . . . at [Alpine] to understand the nature of [his] educational and behavioral functioning.
c. The School District convenes an IEP meeting, facilitated by a neutral facilitator (not employed by the School District), for [Steven] that complies with all procedural requirements of IDEA, particularly all of the provisions that the SCO has found the School District to have violated, and develops an IEP that includes a description of placement sufficient to allow [Mother] to understand what is being proposed.
App., Vol. III at 618.
6 VII at 1801; and (3) taken together, those failures amounted to the denial of a FAPE. The
district court ordered the District to reimburse Mother for Steven’s tuition at Alpine for
2016–2017 and awarded her attorney’s fees as the prevailing party.
III
Mother argues that the appeal is moot, and we must address that issue first because
Article III limits courts to adjudicating “actual, ongoing controversies.” Honig, 484 U.S.
at 317. To satisfy the case-or-controversy requirement of Article III, “the parties ‘must
continue to have a personal stake in the outcome of the lawsuit’ throughout the various
stages of litigation.” Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116,
1123 (10th Cir. 2008) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990)).
This case concerns Steven’s 2016–2017 IEP, which governed a schoolyear that
has passed. Although Mother initially sought and was awarded reimbursement for
Steven’s tuition at Alpine, the parties agree that the District paid for Steven’s enrollment
at Alpine pursuant to the IDEA’s stay-put provision,3 and need not reimburse Mother for
anything. Therefore, unless a mootness exception applies, there is no “actual, ongoing
controvers[y]” before us. Honig, 484 U.S. at 317.
The District argues that this case falls into the exception to the mootness doctrine
for cases “capable of repetition yet evading review.” Id. at 318 (quoting Murphy v. Hunt,
455 U.S. 478, 482 (1982) (per curiam)). This exception, which applies only in
3 The stay-put provision provides that “during the pendency of any proceedings conducted pursuant to [the IDEA], unless the State or local educational agency and the parents otherwise agree, the child shall remain in [his] then-current educational placement . . . .” 20 U.S.C. § 1415(j). 7 “exceptional situations,” Spencer v. Kemna, 523 U.S. 1, 17 (1998), can prevent dismissal
on mootness grounds when “(1) the challenged action was in its duration too short to be
fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable
expectation that the same complaining party would be subjected to the same action
again,” Murphy, 455 U.S. at 482 (quoting Ill. Elections Bd. v. Socialist Workers Party,
440 U.S. 173, 187 (1979)).
The first prong of the exception is clearly satisfied. A one-year IEP is, by its
nature, “too short [in duration] to be fully litigated prior to its . . . expiration.” Id.; see
also Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985)
(“[T]he [IDEA] review process is ponderous. A final judicial decision on the merits of an
IEP will in most instances come a year or more after the school term covered by that IEP
has passed.”).
The pivotal issue then becomes whether the District has shown that there is a
“reasonable expectation” that it will be subjected to the same action again. The District’s
“reasonable expectation” must be more than “a mere physical or theoretical possibility”;
it must be something akin to a “demonstrated probability” that the District will again be
in this situation. Murphy, 455 U.S. at 482. The District argues that Mother “almost
certainly will challenge [Steven’s most recent] IEP when these proceedings have been
completed,” Aplt. Reply at 5, and notes that “[a]t the end of [Steven’s December 4, 2018]
IEP meeting, [Mother] expressed her disagreement” with the IEP team’s proposed
placement at Sierra High School in its The Autism Program, id. at n.2. The District
argues a live controversy remains: whether the District will have to maintain Steven’s
8 enrollment at Alpine during the pendency of any challenge by Mother to Steven’s
December 4, 2018 IEP. Even assuming that this amounts to a reasonable expectation of
future IDEA disputes between the District and Mother, it does not satisfy the mootness
exception in this case because the procedural challenges Mother raises are fact-specific to
Steven’s 2016–2017 IEP proceedings.
Mother relies on two cases in support of her mootness argument: Board of
Education of Downers Grove Grade School District No. 58 v. Steven L., 89 F.3d 464 (7th
Cir. 1996), and District of Columbia v. Jeppsen ex rel. M.J., 468 F. Supp. 2d 107 (D.D.C.
2006). Each case involved a challenge to an IEP for a completed schoolyear and the
application of the stay-put provision preventing the school from implementing the
challenged IEP. See Steven L., 89 F.3d at 465; Jeppsen, 468 F. Supp. 2d at 109. In
Steven L., by the time the case reached the Seventh Circuit, the child’s parents had
“already agreed to a new IEP with a different school district.” 89 F.3d at 467. In
Jeppsen, the parents and school district had reached a settlement and agreed to the
student’s educational placement for the schoolyear at issue. 468 F. Supp. 2d at 110. In
each case, the court concluded that the case was moot. In Steven L., the court concluded
that the capable-of-repetition exception did not apply because
[the student] has successfully completed grade school and is on his way to high school. He will never again attend fifth grade [(the grade to which the challenged IEP related)]. The IEP modification at issue . . . has been replaced by an IEP for [the student]’s high school years. [The student]’s parents struck this agreement with a different entity than the [Defendant Board]. There is no continuing controversy. This school district has no authority to modify any IEP involving [the student].
89 F.3d at 468. In Jeppsen, the district court also concluded that the exception did not
9 apply, even though “it is likely both that [the district] will attempt to move [student’s]
placement in the future and that the change will be challenged by [parent],” because “it is
impossible to predict whether a hearing officer will continue to support the [challenged]
placement.” 468 F. Supp. 2d at 112 n.5.
These cases support our conclusion that this case is moot. In each case, “[b]ecause
the status quo remained in effect from the time [the parents] challenged the school
district’s attempt to modify the IEP, they de facto received the relief they originally
sought . . . ; the modified IEP never took effect.” Steven L., 89 F.3d at 468; accord
Jeppsen, 468 F. Supp. 2d at 111–12. And, in each case, there was no evidence that the
asserted IDEA violation was likely to occur again. Steven L., 89 F.3d at 468 (“This
school district has no authority to modify any IEP involving [student].”); Jeppsen, 468 F.
Supp. 2d at 112 n.5 (“[I]t is likely that [student’s] IEP will change in the future, thus, it is
impossible to predict whether a hearing officer will continue to support the [challenged]
placement.”).
Each of those facts is present in this case. By operation of the stay-put provision,
Steven remained at Alpine for the 2016–2017 schoolyear and, we assume, he has
continued to remain there. And, although the District asserts that Mother “almost
certainly will challenge” Steven’s December 4, 2018 IEP, Aplt. Reply at 5, nothing
indicates that, even if she does challenge it, her challenges will be of the same procedural
nature as those she brought in this case. A discussion of Honig, on which the District
relies in support of its capable-of-repetition argument, clarifies this point.
In Honig, two students eligible for special education because of emotional
10 disturbance challenged indefinite suspensions by their school district. 484 U.S. at 312–
13. Each student had engaged in “violent and disruptive conduct,” but it was undisputed
that the students’ conduct was “related to their disabilities.” Id. at 312. The Supreme
Court concluded that the case was moot for one student, who was twenty-four and no
longer IDEA-eligible. Id. at 318. The other student, however, was twenty, had not
completed high school, and was therefore still entitled to a FAPE. Id. The Court
concluded that the twenty-year-old student’s claims were not moot because of his
“continued eligibility for educational services under [the IDEA], the nature of his
disability, and [the school district’s] insistence that all local school districts retain
residual authority to exclude disabled children for dangerous conduct.” Id. at 318–19
(footnote omitted). This conclusion relied on the “inextricable link between the student’s
violent behavior and the challenged policy of exclusion.” Brown v. Bartholomew
Consol. Sch. Corp., 442 F.3d 588, 599 (7th Cir. 2006). Given the nature of the student’s
disability and the school district’s assertion that it could unilaterally refuse to provide
educational services to the student, the Supreme Court had “little difficulty concluding
that there [wa]s a ‘reasonable expectation,’ that [the student] would once again be
subjected to” the precise action challenged in that case, and it therefore concluded that his
claim was not moot. Honig, 484 U.S. at 319–20 (quoting Murphy, 455 U.S. at 478).
The certainty of the continued dispute is not present here as it was in Honig. Even
assuming the District is correct that Mother “almost certainly will challenge” Steven’s
new IEP, Aplt. Reply at 5, there is no reason to conclude—must less a demonstrated
probability—that any subsequent IDEA challenge will be premised on the same
11 procedural shortcomings by the District that Mother challenges in this case.4 Mother’s
challenges to Steven’s 2016–2017 IEP were based on specific actions that she alleged the
District did not take in relation to Steven’s 2016–2017 IEP. As relevant on appeal, she
challenged the District’s failure to (1) have a staff member from the new placements
proposed by the District (Roundup and the SOE) observe Steven at Alpine, (2) utilize a
neutral facilitator for Steven’s IEP meeting, and (3) adequately identify Steven’s
proposed educational placement. Nothing suggests that these alleged procedural failures
will be at issue in any subsequent IDEA challenge Mother brings.5 If we decided now,
more than three years after the challenged actions, whether those alleged failures
4 In fact, the District’s assertions about what happened in the December 2018 IEP meeting indicate that the challenges Mother brings to Steven’s new IEP likely will not be of the same nature as those she brought in this case. The District stated in briefing that during Steven’s 2018 IEP meeting, “[t]he IEP team determined and proposed that [Steven] be educated at his neighborhood high school, Sierra High School in its The Autism Program.” Aplt. Reply at 5. Therefore, Mother’s argument in this case that the IDEA required the District to identify Steven’s placement as either COLA and LIBERTY (not merely the SOE) seems unlikely to be at issue in any challenge Mother may bring to Steven’s most recent IEP. 5 It is true that the parties have been involved in IDEA-related disputes before, and that Mother has consistently opposed the District’s attempts to place Steven somewhere other than Alpine. And in some circumstances, ongoing disagreement could satisfy the capable-of-repetition exception to mootness. See, e.g., Jenkins v. Squillacote, 935 F.2d 303, 308 (D.C. Cir. 1991) (concluding that an IDEA claim was not moot when “both litigants readily agreed that the question of the degree of specificity required of the District in providing notice to parents under the IDEA is . . . . reasonably likely to be a recurring legal question with respect to the District’s educational plans for the very pupil whose parents are now before this court”). But the only IDEA claims at issue on appeal are the District’s alleged procedural violations in creating Steven’s 2016–2017 IEP. And although it is possible that the District might again create an IEP with the same alleged deficiencies, the record does not contain a “demonstrated probability” that it will.
12 amounted to a violation of the IDEA, we “would be issuing, in effect, an advisory
opinion. Our decision would merely tell the parties who was correct . . . . It would do
nothing to define the contours of the parties’ continuing legal relationship under the
IDEA such that future repetitions of the injury could be avoided.” Brown, 442 F.3d at
599–600.
Despite arguing that the appeal is moot, Mother argues that the district court case
“falls within the exception to the mootness doctrine.” Aplee. Br. at 6. In support, she
asserts that “the District continues to attempt to change Steven’s educational placement in
violation of the IDEA.” Id. However, as discussed, the capable-of-repetition exception
in the IDEA context looks at the likelihood that the specific IDEA violations alleged will
be repeated. And the record does not indicate that it is reasonably likely that the District
will again violate the IDEA in the specific ways that Mother alleges it did in this case.
Because there is no “reasonable expectation” that the IDEA violations Mother asserts are
likely to happen again, the capable-of-repetition exception does not prevent us from
concluding that the district court action is also moot.6
Because the case is moot, we dismiss this appeal, vacate the district court’s ruling,
and remand with instructions to dismiss as moot. See Lewis, 494 U.S. at 482 (1990)
6 As noted, Mother asserted both substantive and procedural IDEA violations in district court. As discussed, the record does not support a conclusion that the procedural violations are reasonably likely to occur again. And even if the record could support a conclusion that the substantive violations are reasonably likely to occur again, Mother does not argue that distinction, pointing only to the District’s alleged procedural violations.
13 (“Our ordinary practice in disposing of a case that has become moot on appeal is to
vacate the judgment with directions to dismiss.”).7
7 Mother’s argument that equity dictates that we affirm the district court’s judgment and remand for a determination of attorney’s fees has no support in the law. Under the IDEA, only the “prevailing party” can be awarded attorney’s fees. 20 U.S.C. § 1415(i)(3)(B). A party can only be determined to prevail if it does so on the merits or with “the necessary judicial imprimatur,” such as through a consent decree. Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). Because the case is moot, the court does not have jurisdiction to make a determination on the merits, and Mother cannot be a “prevailing party” under the IDEA. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1129 (10th Cir. 2010), which Mother cites in support of her argument for attorney’s fees, does not dictate otherwise. Silvery Minnow noted that “if the party seeking vacatur has caused mootness, generally we do not order vacatur.” Id. That is not the circumstance here. This case has become moot by the passage of time and the nature of the IDEA violations at issue, not by any action by the District. 14