J.S. v. The Westerly School District , 910 F.3d 4 ( 2018 )

United States Court of Appeals
For the First Circuit
Nos. 17-1311, 17-1817
J.S., individually and as parent and legal guardian of M.S., a
minor; T.S., individually and as parent and legal guardian of
M.S., a minor,
Plaintiffs, Appellees,
v.
THE WESTERLY SCHOOL DISTRICT; THE WESTERLY PUBLIC SCHOOLS,
Defendants, Appellants,
THE STATE OF RHODE ISLAND DEPARTMENT OF EDUCATION,
Defendant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Mary Ann Carroll, with whom Henneous Carroll Lombardo LLC was
on brief, for appellants.
Gregory A. Mancini, with whom Sinapi Law Associates, Ltd. was
on brief, for appellee.
December 6, 2018
KAYATTA, Circuit Judge. M.S. is a student who until
recently was enrolled in the Westerly School District in Westerly,
Rhode Island. M.S. suffers from Lyme Disease and other tick-borne
illnesses, and she receives educational accommodations pursuant to
Section 504 of the Rehabilitation Act of 1973. For over two years,
her parents J.S. and T.S. unsuccessfully sought to have Westerly
determine that M.S. was also eligible for an Individualized
Education Program (IEP) under the Individuals with Disabilities
Education Act (IDEA). M.S. and her parents have since moved out
of the Westerly District, thereby mooting the dispute over M.S.'s
entitlement to an IEP. In the course of the parties' dispute,
however, the parents obtained an order from the district court
forcing Westerly to forego conducting its own evaluations and
decide "post-haste" if M.S. was eligible for an IEP. Although
that decision resulted in a determination that M.S. was not
eligible, the district court subsequently awarded the parents
attorneys' fees as the prevailing parties. Westerly now appeals
both the district court's order compelling it to determine
eligibility without first obtaining its own evaluations and the
fee award. For the following reasons, we find the challenge to
the order moot and the attorneys' fee award mistaken.
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I.
A.
We begin with a basic description of the IDEA's framework
for determining a student's eligibility for an IEP and the
procedure for adjudicating a dispute over eligibility. The
purposes of the IDEA include "ensur[ing] that all children with
disabilities have available to them a free appropriate public
education" and "ensur[ing] that the rights of children with
disabilities and parents of such children are protected." 20
U.S.C. § 1400(d)(1)(A)-(B). To these ends, the IDEA offers federal
funds to states that provide a free appropriate public education
(FAPE) to children with disabilities. See generally id. §§ 1411–
1412. Rhode Island accepted IDEA funding and agreed to provide
FAPE to disabled children. See 21–2–54:A R.I. Code R. § 300.2(a).
Under the IDEA and its implementing regulations, parents
may request an initial evaluation "to determine if the[ir] child
is a child with a disability." 20 U.S.C. § 1414(a)(1)(B). Upon
receipt of such a request, the local educational agency (LEA) "must
conduct a full and individual initial evaluation . . . before the
initial provision of special education and related services to a
child with a disability." 34 C.F.R. § 300.301(a). As part of
this initial review, a team of professionals must "[r]eview
existing evaluation data on the child, including . . .
[e]valuations and information provided by the parents of the
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child." Id. § 300.305(a); see also id. § 300.502(c) ("If the
parent . . . shares with the public agency an evaluation obtained
at private expense, the results of the evaluation . . . [m]ust be
considered by the public agency, if it meets agency criteria, in
any decision made with respect to the provision of FAPE to the
child."). After reviewing any existing data, the LEA must
"identify what additional data, if any, are needed to
determine . . . [w]hether the child is a child with a
disability . . . [and the LEA] must administer such assessments
and other evaluation measures as may be needed to produce the data
identified." Id. § 300.305(a),(c). Only then, "[u]pon completion
of the administration of assessments and other evaluation
measures," do a group of professionals and the parents of the child
meet to determine whether the student is a child with a disability
under the IDEA and the educational needs of the child. Id. at
§ 300.306(a). So, in sum, before making an IDEA eligibility
determination, the LEA must (1) review existing data, including
evaluations provided by the parents; (2) identify what additional
data are needed to determine whether the child is eligible; and
(3) administer evaluations to collect that additional data.
When the LEA decides that it needs additional data, the
LEA must obtain parental consent before conducting its own
evaluations of the child. See id. § 300.300(a)(1)(i) ("The public
agency proposing to conduct an initial evaluation to determine if
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a child qualifies as a child with a disability under § 300.8 must,
after providing notice . . . obtain informed consent . . . from
the parent of the child before conducting the evaluation."). If
the parents refuse to consent, the school can -- but is not
required to -- pursue the evaluation through mediation or
administrative procedures. See id. § 300.300(a)(3)(i). But "the
public agency does not violate its obligation [to determine
eligibility] if it declines to pursue the evaluation." Id.
§ 300.300(a)(3)(ii).
Parents who contest the identification, evaluation, or
educational placement of a child with a disability can file a "due
process complaint," which kicks off a state administrative process
for adjudicating the dispute. See id. § 300.507(a). Any party
aggrieved by the findings or decisions made in the administrative
proceeding has a right to bring a civil action in a United States
District Court. See id. § 300.516(a).
B.
We now sketch the relevant facts of this case. In the
fall of 2015, J.S. and T.S. ("the parents") requested that Westerly
determine that M.S. was eligible for special educational services
under the IDEA. The school and the parents agreed to a meeting to
be held on December 17, 2015. The parties had different
expectations about the meeting. In a December 9 form sent to the
parents, the school indicated that the purpose of the meeting was
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to "address a referral to the Evaluation Team." The parents
replied that they expected the meeting to include not only a
referral discussion, but also an eligibility determination, as
there was "enough objective information for the team to consider
and make a decision."
At the meeting, the parents brought with them two
educational advocates and a neuropsychologist. M.S.'s personal
physician and her audiologist phoned in. The medical professionals
presented the results of their evaluations of M.S. and their
recommendations for special educational services, and the parents
provided the school with copies of the evaluations. Soon after
the meeting, school officials wrote to the parents that, after
considering the independent evaluators' opinions, "there remained
significant questions," in part because "the results of the
evaluations conducted [by the parents' experts] did not in many
ways reflect what school staff who know [M.S.] have or are
experiencing with her." Consistent with its obligations under the
IDEA, Westerly undertook to "conduct evaluations to answer these
questions and assist with the eligibility determination."
Westerly therefore requested the parents' consent to conduct five
educational evaluations and observation by the school social
worker.
Rather than consent to the school's proposed
evaluations, the parents filed a due process complaint with the
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Rhode Island Department of Education in February 2016, alleging
that Westerly failed to identify M.S. as a child with a disability
who was entitled to special educational services. In April 2016,
the administrative hearing officer assigned to the case relied on
the regulations discussed above to conclude that the district had
a right to conduct its own evaluations before making an eligibility
determination. The hearing officer consequently ordered the
parents to "execute all releases necessary for school department
to conduct appropriate evaluations of M.S." The parents did not
provide consent, and in August 2016, the hearing officer dismissed
the due process complaint based on the parents' failure to comply
with its order. The parents appealed to the District Court of
Rhode Island.
Following a March 17, 2017 hearing on cross motions for
summary judgment, the district court eventually commanded Westerly
to determine M.S.'s eligibility based on the existing information
(without first conducting its own evaluations). While appealing,
Westerly also complied with the district court's order by making
an eligibility determination. M.S.'s teachers participated and
described M.S.'s above-average academic performance.
Unsurprisingly, Westerly's conclusion tracked what it told the
parents when requesting the further evaluations that the parents
had refused to permit: The evaluations provided by the parents
were inconsistent with M.S.'s performance in the classroom.
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Therefore, Westerly concluded that M.S. was ineligible for special
educational services. The family then moved out of the school
district before any tribunal took any further action on the merits
of the case.
In spite of the outcome of the eligibility
determination, the district court subsequently found that the
parents were "prevailing parties" under the IDEA, and granted their
motion for $53,290.50 in attorneys' fees. Westerly appealed the
attorneys' fees order to this court. We consolidated that appeal
with Westerly's prior appeal.
II.
A.
Before assessing the district court's order that
Westerly make an eligibility determination without first
conducting its own evaluations, we must ask whether this issue
remains justiciable. "A case that becomes moot at any point during
the proceedings is 'no longer a "Case" or "Controversy" for
purposes of Article III,' and is outside the jurisdiction of the
federal courts." United States v. Sanchez-Gomez, 138 S. Ct. 1532,
1537 (2018) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91
(2013)). We have consistently held that a case becomes moot "when
the issues presented are no longer 'live' or the parties lack a
legally cognizable interest in the outcome." Weaver's Cove Energy,
LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 468 (1st
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Cir. 2009) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).
A party lacks a legally cognizable interest in the outcome of a
case if we are "not capable of providing any relief which will
redress the alleged injury." Gulf of Me. Fisherman's All. v.
Daley, 292 F.3d 84, 88 (1st Cir. 2002).
Westerly appeals the order requiring it to make an
eligibility determination without the benefit of its own
evaluations. A favorable ruling from this court could provide no
relief from that order because the eligibility determination
already took place. Moreover, if there was any doubt that this
issue is moot, such doubt disappeared at oral argument when we
learned that M.S. no longer lives in the Westerly School District.
We therefore lack the power to review the district court's order
that Westerly determine M.S.'s eligibility without first
conducting its own evaluations.
B.
Barred from ruling on Westerly's appeal on the merits of
the case, we turn now to the dispute over attorneys' fees. The
IDEA permits a court to award reasonable attorneys' fees to the
prevailing party who is a parent of a child with a disability.
See 20 U.S.C. § 1415(i)(3)(B)(i) ("In any action or proceeding
brought under this section, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs . . . to a
prevailing party who is the parent of a child with a disability.");
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34 C.F.R. § 300.517(a)(1)(i). We review de novo whether a party
achieved a victory that rendered it "prevailing" for purposes of
the IDEA's fee-shifting provision. See Smith v. Fitchburg Pub.
Sch., 401 F.3d 16, 21 (1st Cir. 2005).
We note at the outset that, although the substantive
question underlying the fee award is moot for the reasons discussed
above, the fee-shifting issue is not. "When plaintiffs clearly
succeeded in obtaining the relief sought before the district court
and an intervening event rendered the case moot on appeal,
plaintiffs are still 'prevailing parties' for the purposes of
attorney's fees for the district court litigation." Diffenderfer
v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009); see also id. at
453 ("[I]n the mootness context, a 'prevailing party' is a party
who managed to obtain a favorable, material alteration in the legal
relationship between the parties prior to the intervening act of
mootness."). The controversy over the fees incurred before the
district court is therefore still live.
Westerly urges us to reverse the attorneys' fee award
because the ruling underlying it was based upon an erroneous
interpretation of the IDEA. It is true that, ordinarily, when the
decision underlying a fee award is reversed, the formerly
prevailing party is no longer entitled to attorneys' fees. See,
e.g., Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100
F.3d 175, 195 (1st Cir. 1996). However, when the predicate issue
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is moot, we cannot recoup jurisdiction over the merits by ruling
on a question about attorneys' fees. See Lewis v. Cont'l Bank
Corp., 494 U.S. 472, 480 (1990) ("Th[e] interest in attorney's
fees is, of course, insufficient to create an Article III case or
controversy where none exists on the merits of the underlying
claim."); Ford v. Bender, 768 F.3d 15, 30 n.11 (1st Cir. 2014)
(noting "the wide agreement by appellate judges that they should
not undertake to delve into the details of a district court's
resolution of a controversy that has since become moot in order to
decide the ancillary question of fees" (quoting Ctr. for Biological
Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805–06 (9th Cir.
2008))); Diffenderfer, 587 F.3d at 452 ("[A] party's interest in
recouping attorney's fees does not create a stake in the outcome
sufficient to resuscitate an otherwise moot controversy.").
Therefore, in asking whether the parents prevailed, we look "only
to what relief the district court granted and not to whether the
case was rightly decided." Diffenderfer, 587 F.3d at 453. In
other words, we must turn a blind eye to the merits of the district
court's reading of the IDEA, and ask only whether the district
court's order rendered the parents "prevailing parties."
To be a "prevailing party" under a federal fee-shifting
statute, a litigant must show both a "material alteration of the
legal relationship of the parties" and a "judicial imprimatur on
the change." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of
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Health & Human Res., 532 U.S. 598, 604, 605 (2001).1 "The party's
success cannot be a hollow victory; it must materially alter the
litigants' legal relationship by modifying one party's behavior in
a way that directly benefits the other." Mr. R., 321 F.3d at 14.
In other words, the success must "achieve[] some of the benefit
the parties sought in bringing suit." Hensley v. Eckerhart, 461
U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275,
278–79 (1st Cir. 1978)). To decide whether a party prevailed,
therefore, we "make a qualitative inquiry into the import of the
result obtained," Mr. R., 321 F.3d at 15, comparing the results
achieved with the reasons for bringing suit.
With that standard in mind, we consider what benefits
the parents sought in bringing suit. In the due process complaint,
the parents requested that the hearing officer "[c]onclude
forthwith that M.S. is eligible for an Individual Education Plan
and protections under the Individual [sic] with Disabilities in
Education Act as a child with a disability requiring specialized
instruction and related services." Similarly, in their complaint
to the district court -- setting aside the prayers for fees and
1 We generally interpret the term of art "prevailing party"
consistently across the federal fee-shifting statutes that use
that phrase. See Me. Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d
9, 14 (1st Cir. 2003).
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general prayers for unspecified relief2 -- the parents sought the
following relief:
 "Preliminary and permanent injunctions directing Defendant to
designate that the Defendant's actions denied the Student a
free appropriate education under 20 U.S.C. § 1400 et seq."
 A declaration "[t]hat the child is a child with an educational
disability eligible for specialized instruction under 20
U.S.C. § 1400 et seq."
 "Remand to Defendant in order to develop an Individual
Education Plan based on the evaluations completed to date; or
alternatively, require WPS to an [sic] convene an IEP team
meeting to design an appropriate IEP for the student based on
the evaluations submitted by Plaintiffs."
 "A determination that Defendant's denial of the Plaintiffs'
procedural due process rights were not substantially
justified in law and had no reasonable basis in law or in
fact."
The district court's order garnered none of this relief.
What it did, instead, was to grant a request that the parents
raised for the first time in their summary judgment briefing for
"an expedited hearing on the merits [of their request for an IEP]
2 In addition to their case-specific prayers for relief, the
parents prayed for "[a]n award of any other damages or relief
available under applicable law" and "[s]uch other and further
relief as this Court deems just and proper."
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that will be based on the current available evidence." So, we ask
whether this grant was a victory in the context of "the benefit
[the parents] sought in bringing suit." Hensley, 461 U.S. at 433.
We think not. The school administrators had already made clear
that the available information left them unconvinced that M.S.'s
condition warranted an IEP. They were nevertheless willing to
gather more information, which may have cut either way. Obtaining
an order forcing a decision without additional information was no
more than a Pyrrhic procedural victory that did not advance, and
may well have undercut, the goal of obtaining any success at all
on the merits of the parents' claims.3
III.
For the reasons above, we dismiss as moot the challenge
to the district court's order compelling Westerly to determine
M.S.'s eligibility without first obtaining its own evaluations,
and we reverse the district court's award of attorneys' fees. The
parties shall bear their own costs.
3 There is no dispute that the school's proposed evaluations were
relevant to the question of whether M.S. was eligible for an IEP.
We take no position on whether a parent or guardian may
successfully avoid plainly irrelevant evaluations, and if so,
whether such parties might be considered "prevailing" under the
IDEA's fee-shifting provision.
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