G. v. Harrison School District No. 2 ( 2022 )

FILED
Appellate Case: 20-1372 Document: 010110716025 United States CourtPage:
Date Filed: 07/26/2022 of Appeals
1
Tenth Circuit
July 26, 2022
PUBLISH Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PATRICK G., by and through his
parents and next friends, Stephanie G.
and Daniel G.,
Plaintiffs - Appellants,
v. No. 20-1372
HARRISON SCHOOL DISTRICT NO.
2,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-01034-MSK-KLM)
Jack D. Robinson, Spies, Powers & Robinson, P.C., Denver, Colorado, for
Plaintiffs-Appellants.
John R. Stanek, Anderson, Dude & Lebel, P.C., Colorado Springs, Colorado, for
Defendant-Appellee.
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
HOLMES, Circuit Judge.
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The Individuals with Disabilities Education Act, or “IDEA,” requires states
receiving federal funding to offer children with disabilities a “free appropriate
public education” (“FAPE”) in the “[l]east restrictive environment.” 20 U.S.C.
§ 1412(a). Patrick G. is a seventeen-year-old boy with autism who qualifies for
special educational services under the IDEA and who, since 2013, has been
attending the Alpine Autism Center for school. In 2016, Harrison School District
No. 2 (the “School District” or the “District”) proposed transferring Patrick from
Alpine to a special program at Mountain Vista Community School allegedly
tailored to Patrick’s needs. Plaintiffs-Appellants Patrick’s parents challenged this
decision on Patrick’s behalf, first in administrative proceedings and then in the
U.S. District Court for the District of Colorado, alleging that the School District
committed a host of violations in crafting an “individualized educational plan”
(“IEP”) for Patrick in 2015 and 2016.
After several years of litigation, the district court, relying on two of our
recent IDEA decisions—both of which also involved challenges to Harrison
School District No. 2’s placement of children with autism—determined that the
expiration of Patrick’s 2016 IEP rendered the Parents’ lawsuit moot; in other
words, there was no longer a live controversy for the court to resolve.
Significantly, the district court held several related issues—including the Parents’
request for attorney’s fees from the administrative proceedings, their argument
that the School District had incorrectly reimbursed the Parents’ insurance
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provider instead of the Parents themselves, and their motion for a “stay put”
injunction to keep Patrick in his current educational placement during the
proceedings—were also moot. The Parents contend the district court erred by
failing to find their substantive IDEA claims fall into the “capable of repetition,
yet evading review” exception to mootness. And, even if their substantive IDEA
claims do not fall within this exception, they posit that their requests for
attorney’s fees, reimbursement, and a “stay put” injunction continue to present
live claims.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and
reverse in part. The Parents’ substantive IDEA claims are moot, and do not fall
within the capable-of-repetition-yet-evading-review exception. And because
those substantive claims are moot, the Parents’ stay-put claim—which implicitly
depends on the substantive IDEA claims—is now also moot. The Parents’ claims
for attorney’s fees and reimbursement, however, continue to present live
controversies. We hold these claims are not moot, and we remand to the district
court to rule on the merits of these claims in the first instance.
I
We begin by describing the IDEA’s underlying legal and procedural
framework. We then summarize the relevant factual and procedural history that
led to the district court’s challenged mootness determination.
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A
The IDEA, codified at 20 U.S.C. § 1400 et seq., is a federal statute enacted
pursuant to Congress’s Spending Clause power. See Chavez ex rel. M.C. v. N.M.
Pub. Educ. Dep’t, 621 F.3d 1275, 1277 (10th Cir. 2010); Miller ex rel. S.M. v. Bd.
of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1235–36 (10th Cir. 2009).
Among other things, it “requires states that accept federal special education funds
to provide disabled children with a ‘free appropriate public education’ (‘FAPE’)
in the ‘least restrictive environment.’” Ellenberg v. N.M. Mil. Inst., 478 F.3d
1262, 1267 (10th Cir. 2007). The “primary tool” in ensuring that “all eligible
children with disabilities” are provided with a FAPE “is the [statute’s]
requirement that the state create an individualized education plan (‘IEP’) for each
disabled child.” Miller, 565 F.3d at 1236. The IEP “is the means by which
special education and related services are ‘tailored to the unique needs’ of a
particular child,” and it “must be drafted in compliance with a detailed set of
procedures” by “a child’s ‘IEP Team’ (which includes teachers, school officials,
and the child’s parents).” Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist.
RE-1, --- U.S. ----, 137 S. Ct. 988, 994 (2017) (quoting Bd. of Educ. of Hendrick
Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 181 (1982)); see also Miller,
565 F.3d at 1236 (“The IEP is a written statement that sets forth the child’s
present performance level, goals and objectives, specific services that will enable
the child to meet those goals, and evaluation criteria and procedures to determine
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whether the child has met the goals.” (quoting Ass’n for Cmty. Living in Colo. v.
Romer, 992 F.2d 1040, 1043 (10th Cir. 1993))). “Review of IEPs must occur at
least annually, and [they] are to be revised as appropriate.” Ellenberg, 478 F.3d
at 1268.
In the event of “inevitable conflicts” between students, parents, and state
agencies, Chavez, 621 F.3d at 1277—and especially “[w]hen parents believe their
child is not being provided a FAPE in the least restrictive environment”—the
IDEA offers an opportunity “to present complaints with respect to any matter
relating to the . . . educational placement of the child, or the provision of a free
appropriate public education to such child,” Miller, 565 F.3d at 1236 (omission in
original) (quoting 20 U.S.C. § 1415(b)(6)); see 20 U.S.C. § 1415(b)(7)(A)(ii)
(explaining required contents of a notice of complaint filed under subsection
(b)(6), including, inter alia, “(III) a description of the nature of the problem of
the child relating to such proposed initiation or change, including facts relating to
such problem,” and “(IV) a proposed resolution of the problem”). In addition to
informal or “somewhat . . . formal[]” dispute resolution options, such as
“[p]reliminary meeting[s]” and “mediation,” Endrew F., 137 S. Ct. at 994 (second
alteration in original) (quoting 20 U.S.C. § 1415(e), (f)(1)(B)(i)), the IDEA
entitles a complaining party to “an impartial due process hearing,” Miller, 565
F.3d at 1236; see 20 U.S.C. § 1415(f)(1)(A) (“Whenever a complaint has been
received . . ., the parents or the local educational agency involved in such
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complaint shall have an opportunity for an impartial due process hearing, which
shall be conducted by the State educational agency or by the local educational
agency, as determined by State law or by the State educational agency.”); id.§ 1415(f)(1)(B)(ii) (“If the local educational agency has not resolved the
complaint to the satisfaction of the parents within 30 days of the receipt of the
complaint, the due process hearing may occur . . . .”). “The party requesting the
due process hearing shall not be allowed to raise issues at the due process hearing
that were not raised in the notice [of due process complaint], unless the other
party agrees otherwise.” 20 U.S.C. § 1415(f)(3)(B).
“[A]t the conclusion of the administrative process, the losing party may
seek redress in state or federal court.” Endrew F., 137 S. Ct. at 994; see 20
U.S.C. § 1415(i)(2)(A) (“[A]ny party aggrieved by the findings and decision made
[by the administrative hearing officer] shall have the right to bring a civil action
with respect to the complaint presented pursuant to this section . . . in a district
court of the United States . . . .” (emphasis added)). The IDEA also enables “a
prevailing party who is the parent of a child with a disability” in “any action”
brought under § 1415—including the administrative proceedings—to move for
attorney’s fees, which the district court may award at its discretion. 20 U.S.C.
§ 1415(i)(3)(B)(i)(I).
Lastly, § 1415(j), often referred to as the IDEA’s “stay put” provision,
entitles a child involved in IDEA proceedings to “remain in [his or her] then-
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current educational placement” until “all such proceedings have been completed.”
Id. § 1415(j); 34 C.F.R. § 300.518(a) (“[D]uring the pendency of any
administrative or judicial proceeding regarding a due process complaint notice
requesting a due process hearing . . ., unless the State or local agency and the
parents of the child agree otherwise, the child involved in the complaint must
remain in his or her current educational placement.”). The stay-put provision thus
operates as an “automatic statutory injunction,” Miller, 565 F.3d at 1252 n.13
(quoting Norman K. ex rel. Casey K. v. St. Anne Cmty. High Sch. Dist. No. 302,
400 F.3d 508, 510–11 (7th Cir. 2005)), which “prevent[s] school districts from
‘effecting unilateral change in a child’s educational program,’” Erickson v.
Albuquerque Pub. Schs., 199 F.3d 1116, 1121 (10th Cir. 1999) (quoting
Susquenita Sch. Dist. v. Raelee S. ex rel. Heidi S., 96 F.3d 78, 83 (3d Cir. 1996)).
With this legal framework as background, we turn to the Parents’ dispute
with the School District.
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B
1
Patrick G. is a legal minor “who has been diagnosed with autism spectrum
disorder (autism) and speech delays.” 1 Aplts.’ App., Vol. III, at 706 (Dec. of
Administrative Law Judge (“ALJ”), dated Apr. 18, 2017). Patrick was eleven
years old when the conflict between his Parents and the School District began; he
is now seventeen years old. It is uncontested that Patrick’s condition qualifies
him for “special education services adequate to provide [him a] FAPE.” Id. at
707.
In August 2013, Patrick’s parents enrolled him in the School District after
his family moved to Colorado Springs. As part of the transition, Patrick’s mother
met with District officials and provided them with Patrick’s prior school records,
including his IEP. The School District “did not convene a new IEP meeting, but
[instead] offered [Patrick] placement in a center based program, and referred him
to Centennial Elementary School.” Id. But Patrick’s mother, after touring the
school, felt its academics were “too rigorous” for Patrick, and requested, as an
1
Where possible, we rely on the factual recitation from the decision
rendered in Patrick’s administrative due process proceedings. Cf. Sytsema ex rel.
Sytsema v. Acad. Sch. Dist. No. 20, 538 F.3d 1306, 1311 (10th Cir. 2008) (noting
that, when the district court reviews an administrative order in the IDEA context,
it “must ‘give “due weight” to the [administrative] hearing officer’s findings of
fact, which are considered prima facie correct’” (quoting L.B. ex rel. K.B. v. Nebo
Sch. Dist., 379 F.3d 966, 974 (10th Cir. 2004))). Neither party contests the
administrative law judge (“ALJ”)’s characterization of the facts at issue.
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alternative, “placement for [Patrick] at Alpine,” 2 where she had “placed [him] on
the waitlist in the summer of 2013.” Id. at 707–08. Ultimately, the School
District “offered [Patrick] placement at Alpine,” despite the fact that Alpine does
not offer speech-language pathology (“SLP”) or occupational therapy (“OT”)
services, which Patrick uses. 3 Id. at 708.
This dispute arises from the School District’s efforts to update Patrick’s
2016 IEP, effectively changing Patrick’s educational placement from Alpine to
Mountain Vista Community School (“Mountain Vista”). 4 Beginning in April
2
Alpine “is a private, non-profit treatment facility in Colorado
Springs”; it “is not a school certified by the [Colorado Department of Education]
and does not have licensed special education teachers on its staff.” Aplts.’ App.,
Vol. III, at 708. Students “do not earn academic credit”; rather, Alpine “focuses
on behavioral management because uncontrolled behavior seriously interferes
with academic progress.” Id. At the time of the ALJ’s decision, Patrick was “in a
classroom with no other students.” Id.
3
The School District did not provide SLP and OT services during
Patrick’s initial years at Alpine. In administrative proceedings, the parties
disputed whether the School District was obligated to provide such services. The
ALJ at Patrick’s due process hearing found there was “insufficient evidence . . .
to conclude that the District offered to provide SLP or OT to [Patrick in 2013] if
he was not [placed] at a public school.” Aplts.’ App., Vol. III, at 708 (emphasis
added). That said, “[t]he District told [Patrick’s mother] that a District employee
would provide [SLP and OT] services,” but “no one from the District contacted
[the Parents] about SLP and OT for [Patrick],” despite Patrick’s mother “ma[king]
several phone calls to the District regarding [these services].” Id. Ultimately,
“TRICARE, [the Parents’] insurance carrier, . . . pa[id] for [Patrick] to receive
SLP and OT [services] at Alpine,” starting around the end of 2015. Id.
4
This was not the School District’s first attempt to alter Patrick’s
educational placement. In April 2014, the District “convened an IEP meeting to
discuss [Patrick’s] services and placement for the following school year.” Aplts.’
(continued...)
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2015, Patrick underwent comprehensive evaluations, and his Parents met with
District officials at both Alpine and Mountain Vista pursuant to the triennial
process to reestablish Patrick’s IDEA eligibility.
As part of this evaluation process, Patrick’s IEP Team met with a neutral
facilitator on January 8, 2016, to discuss updating his IEP. 5 The IEP Team first
concluded Patrick “did not exhibit the need for a Behavioral Intervention Plan
(BIP) based on the behaviors he exhibited during the [2015] evaluations,” but
stated they would revisit this determination if things changed. Id. at 717. They
then “discussed the advantages and disadvantages of both Alpine and Mountain
4
(...continued)
App., Vol. III, at 709. It “did not offer a specific placement for [Patrick],” but
told Patrick’s parents that, “although [Patrick] had made [undisputed] progress at
Alpine,” it would “no longer be an option for him” going forward. Id. His
Parents, along with three other families, then filed a complaint with the Colorado
Department of Education in August 2014, “challenging the District’s decision to
remove their children from Alpine.” Id. A State Complaints Officer (“SCO”)
issued a decision in October 2014, “finding that the School District’s plan to
change [Patrick’s] placement [from Alpine], and the manner in which it was done,
. . . violated the IDEA.” Id. To remedy these violations, the SCO “ordered the
School District to resume funding [Patrick’s] placement at Alpine and prohibited
any future change of placement” absent satisfaction of certain conditions. Id.
The School District did not appeal the decision, and Patrick remained at Alpine in
the ensuing months. See id.
5
As noted supra, a student’s IEP Team determines the student’s
“needs, educational services, and placement,” and is comprised of, “at a
minimum: the child’s parent(s), a regular education teacher if the child is or may
be placed in a regular education environment, a special education teacher, a
supervisory representative of the school district, and, at the discretion of the
parent(s), any other person who has knowledge or special expertise regarding the
child.” Aplts.’ App., Vol. III, at 714; see also Endrew F., 137 S. Ct. at 994.
10
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Vista.” Id. at 718; see id. (comparing the advantages of Mountain Vista—which
“were that [Patrick] would receive specialized, small-group[] social and academic
instruction in the special education classroom for the majority of his school day
while still accessing the general education environment to practice learned social
skills” and “more rigorous, tailored academic instruction”—with the advantages
of Alpine—which were that Patrick could continue his current placement, where
he was admittedly making progress). At the conclusion of the January 2016
meeting, “[a]ll of the team members, with the exception of [the Parents], opined
that [Patrick’s] goals could best be met at Mountain Vista . . . . and th[at its]
public school setting was the least restrictive environment for him.” Id.
The Parents disagreed with the IEP Team majority’s assessment and
threatened to file a due process complaint if Patrick were removed from Alpine.
The School District, accordingly, maintained Patrick’s placement at Alpine until
May 2016, when it convened another meeting to discuss Patrick’s IEP and
potential transition from Alpine to Mountain Vista. The parties, though, reached
an “impasse.” Id. at 719. Patrick’s mother was “firm in her position” that Patrick
should remain at Alpine and that the School District would not convince her to
change his placement to Mountain Vista. Id. The District, on the other hand,
“was confident that it had offered [Patrick the requisite] FAPE” at Mountain
Vista; accordingly, “it discontinued its payments to Alpine on May 20, 2016.” Id.
at 720.
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2
In response to the School District’s decision to discontinue payments to
Alpine, and to the general impasse over Patrick’s 2016 IEP, the Parents filed a
due process complaint on Patrick’s behalf on August 25, 2016. Specifically, they
alleged the School District committed myriad procedural and substantive
violations regarding Patrick’s 2016 IEP, including that the District (1) “failed to
provide Patrick the speech language and occupational services required in his”
IEP for several years; (2) “failed to comply with the . . . requirements of” the
IDEA, thereby denying Patrick a FAPE; (3) “significantly changed Patrick’s
educational placement without conducting a full or adequate reevaluation of
Patrick”; (4) “failed to include as members of Patrick’s IEP Team individuals who
had specific and current knowledge about Patrick and his educational needs,”
including “staff from [his] current educational placement at Alpine”; and
(5) “pre-determined Patrick’s educational placement at Mountain Vista” without
considering his “individual educational needs and abilities,” thereby “depriv[ing]
[Patrick’s p]arents [of the chance to] meaningfully participat[e] in [his]
educational placement decision . . . [and] develop[] . . . [his] May 2016 IEP.” Id.
at 602–03 (Due Process Compl., dated Aug. 25, 2016).
As relief, the Parents requested “an order requiring the School District to
place Patrick at Alpine . . . and reimburse the Parents for the costs associated
from this educational placement [at Alpine] from May 20, 2016 to the present.”
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Id. at 603. The Parents also sought to order “the School District to provide
Patrick compensatory SLP and OT services required by Patrick’s IEPs . . . and
compensate [his] Parents for the expense of providing Patrick with future
[therapy] services.” Id. In the course of the administrative proceedings, the
School District agreed to provide reimbursement for the costs of SLP and OT
services provided by TRICARE, the parents’ insurer; the parties continued to
dispute, however, whether the District should reimburse TRICARE or Patrick’s
parents directly.
In April 2017—during the 2016–17 school year to which the IEP
applied—the ALJ announced her decision following a four-day due process
hearing. First, the ALJ rejected the Parents’ arguments that the District had failed
to comply with the IDEA’s procedures and had denied Patrick a FAPE, finding
Patrick’s 2016 IEP complied procedurally and substantively with the IDEA. See
id. at 723–24 (finding that the “credible evidence in th[e] case demonstrate[d] that
the [District’s] procedural violations, if any, did not impede [Patrick’s] right to a
FAPE, nor did they significantly impede [his] parents’ opportunity to participate
in the decision-making process, nor did they cause a deprivation of [Patrick’s]
educational benefit[s]”); id. at 725–27 (concluding that Patrick “is capable of
learning in a less restrictive environment than the one he is currently in at Alpine”
and that, consequently, “the District’s proposed placement [at Mountain Vista] in
the 2016 IEPs is reasonably calculated to enable [Patrick] to receive educational
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benefit and complies with . . . the IDEA”).
Second, the ALJ rejected the Parents’ claim for compensatory education for
the SLP and OT services they alleged Patrick was denied before 2015 when he
was initially placed at Alpine. It found that these services were included in
Patrick’s April 2014 and 2016 IEPs, but that he did not receive SLP and OT
services until TRICARE began paying for them in December 2015. Nevertheless,
because Patrick’s inability to receive these services had not “resulted in an
educational deficit,” the “appropriate remedy” was for the District to provide
reimbursement for the OT and SLP services that TRICARE had
covered—reimbursement the District had agreed to in the course of the
proceedings. Id. at 728.
Third, the ALJ noted that although the School District had agreed to pay
Patrick’s Alpine tuition costs and his SLP and OT service costs from January
2016 forward, a dispute remained over whether “the check should be made
payable to both [the Parents] and TRICARE.” Id. The ALJ found the Parents
“failed to establish that they . . . suffered any financial loss other than [a] $35 per
month premium paid to TRICARE, and . . . failed to establish that they . . .
exhausted, or are exhausting, their benefits through TRICARE.” Id. Further, the
District was “not trying to avoid payment of the expenses and derive a benefit
from the payment of the costs by TRICARE”—indeed, it was “willing to pay
TRICARE, the entity who actually expended the resources.” Id. Because the
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Parents “ha[d] not expended any money, other than the monthly premiums, and
therefore, [were] not entitled to reimbursement for funds they ha[d] not paid,” the
District was permitted, but not required, “to make the [relevant] check payable to
. . . TRICARE, as well as [the Parents].” Id. But the District needed to
“reimburse [the Parents] directly for the $35 monthly premiums and any other
amounts they, themselves, expended for [Patrick’s] costs at Alpine and his SLP
and OT services.” Id. at 728–29.
In sum, the ALJ concluded that (1) the District’s 2016 IEP for Patrick
“constitute[d] an offer of a FAPE” in the least restrictive environment; (2) the
Parents “failed to meet their burden that [Patrick was] entitled to compensatory
services for OT and SLP therapy”; and (3) the Parents had “met their burden in
establishing that the District owe[d] reimbursement for the costs at Alpine and for
private OT and SLP services,” but that the District had “discretion to include
TRICARE as a payee on the reimbursement payment,” except as to “any
expenditures, such as . . . monthly premium[s],” made by the Parents, for which
they were entitled to direct reimbursement. Id. at 729.
3
A little more than a week later, Patrick’s parents filed a “Complaint for
Attorney Fees and Appeal of Agency Decision” in Colorado federal district court.
Id., Vol. I, at 8–24 (Compl. For Att’y Fees & Appeal of Agency Dec., filed Apr.
26, 2017) (capitalization omitted). First, the Parents sought “to recover attorneys
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fees and costs pursuant to 20 U.S.C. § 1415(i)(3)(B) as a prevailing party at an
impartial due process hearing conducted pursuant to 20 U.S.C. § 1415(f).” Id. at
9; see also id. at 22. The Parents also generically contended, in their second
claim for relief, they were “aggrieved, at least in part, by the findings and
decision of the ALJ,” and sought “review and reversal of those findings and
decision adverse to” them. Id. at 23. As relief, they requested, inter alia, “an
Order for the recovery of . . . attorney fees and costs in the underlying due
process action”; “an Order requiring the School District to issue a check to [the]
Parents, without TRICARE as a payee, for the costs of Alpine and the SLP and
OT services”; that the district court “reverse the findings and decision of the ALJ
adverse to [the Parents]”; and that the court conclude the District’s proposed 2016
IEP was “not reasonably calculated to provide Patrick an appropriate education.”
Id.; cf. Patrick G. ex rel. Stephanie G. v. Harrison Sch. Dist. No. 2, No. 17-cv-
01034, 2020 WL 5877604, at *1 n.2 (D. Colo. Oct. 2, 2020) (the district court
explaining its “understand[ing] [of] th[e] challenge [as] limited to the ALJ’s
ruling that the 2016 IEP was reasonably calculated to provide Patrick with a
FAPE and a request for attorney fees”).
Throughout the administrative proceedings and, at first, following the
commencement of the district court action, the School District continued to pay
Patrick’s placement costs at Alpine. But after two years of district court
proceedings, it informed Patrick’s parents that it would terminate its contract and
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cease paying for Alpine “[i]n light of recent court decisions.” 6 See Aplts.’ App.,
Vol. I, at 202 (Email from Amy Lloyd, dated Oct. 21, 2019). In response, the
Parents moved for a “stay put” injunction pursuant to 20 U.S.C. § 1415(j). See id.at 180–93 (Pl.’s Mot. for “Stay Put” Inj., filed Oct. 23, 2019). They requested
that the court “require[] the School District to maintain Patrick’s [stay put]
placement”—viz, his “then-current educational placement”—“pending completion
of th[e] case.” Id. at 181.
4
While the Parents’ district-court appeal and request for injunctive relief
were pending, two developments led the district court to order supplemental
briefing on whether the IDEA challenge had become moot. First, Patrick’s
challenged 2016 IEP expired and was superseded by subsequent IEPs, which
continued to recommend that Patrick be placed in public schools instead of
6
Specifically, the School District asserted, under a district court’s
recent decision in Smith v. Cheyenne Mnt. Sch. Dist. 12, No. 19-cv-2345, 2019
WL 4201503 (D. Colo., Sept. 5, 2019) that “for ‘stay put’ to apply, an IEP would
have to indicate that receiving services at the place where a student was currently
enrolled was a ‘basic element’ of their IEP.” Aplts.’ App., Vol. I, at 204–05
(Def.’s Resp. to Pls.’ Mot. for “Stay Put” Inj., filed Oct. 25, 2019). The District
argued Alpine itself, as a physical school location, was not a “basic element” of
Patrick’s IEP and, therefore, the District’s “stay put” obligations did not require
that it keep Patrick there. See id. at 211–12 (“Judge Martinez agreed with the
Colorado Department of Education that ‘stay put’ refers to the services contained
in the IEP, not the setting where the services are to be performed. . . . [Because]
[t]here is nothing in the 2016 IEP that requires that the services contained therein
be provided at . . . Alpine . . .[,] it [therefore] is not [Patrick’s] ‘stay put’
placement . . . .” (footnote omitted)).
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Alpine. See id., Vol. II, at 493 (Pls.’ Supp. Br., Ex. 1, 2019 IEP, filed May 1,
2020) (maintaining Patrick’s placement at Mountain Vista); id. at 414 (Def.’s
Supp. Br., Ex. O, 2020 IEP, filed May 1, 2020) (recommending Patrick be placed
at Harrison High School); see also Ellenberg, 478 F.3d at 1268 (noting that
“[r]eview of IEPs must occur at least annually”). Second, we issued two
published decisions defining the contours of mootness in the IDEA context:
Steven R.F. ex rel. Fernandez v. Harrison School District No. 2, 924 F.3d 1309(10th Cir. 2019), and Nathan M. ex rel. Amanda M. v. Harrison School District
No. 2., 942 F.3d 1034 (10th Cir. 2019). As in the instant case, each dispute
involved IEP proceedings in the School District that would have effectively
relocated students with autism to a public school in lieu of Alpine.
In Steven R.F., the plaintiff’s mother filed a state complaint alleging that
the District violated a prior administrative ruling and, more broadly, violated the
IDEA in crafting her son’s 2016 IEP. See 924 F.3d at 1311–12. After a state
hearing officer found for the mother, an ALJ reversed, concluding the District had
made an offer of FAPE, and that any alleged procedural violations of the IDEA
were effectively harmless. See id. at 1312. The mother appealed to the federal
district court, asking the court “to find that the 2016–2017 IEP denied [her son]
the FAPE to which he [was] entitled.” Id. The district court reversed the ALJ’s
decision by finding for the mother on the merits, concluding “the District had
violated the 2014 SCO Order and various procedural protections within the IDEA,
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and that these violations amounted to the denial of a FAPE.” Id. at 1312–13. It
ordered the District to reimburse the mother for her son’s 2016-17 tuition at
Alpine, and awarded the mother attorney’s fees as the prevailing party in the
district court. See id. at 1313. The School District appealed.
On appeal, we concluded the dispute between the District and the student’s
mother was technically moot, because the 2016 IEP on which the dispute was
based had expired. We further held the District had failed to establish that the
dispute fell into the “capable of repetition, yet evading review” exception to
mootness, because it could not show “there [was] a ‘reasonable expectation’ that
it w[ould] be subjected to the same action again.” Id. at 1314. In vacating the
district court’s order, we additionally vacated the court’s award of attorney’s fees
to the mother, opining that “[b]ecause the case [was] moot, the [district] court
d[id] not have jurisdiction to make a determination on the merits, and [the]
[m]other [could not] be a ‘prevailing party’ under the IDEA.” Id. at 1316 n.7.
Steven R.F. was followed several months later by Nathan M. In that case,
the child’s mother challenged his 2016 IEP before the Colorado Department of
Education, and a state hearing officer found the District “had failed to develop the
2016 IEP in accordance with the IDEA.” 942 F.3d at 1038. The District, in
response, filed a due process complaint before an ALJ, arguing that the 2016 IEP
offered the child a FAPE and, thus, complied with the IDEA. See id. The ALJ
agreed, concluding the District “met its burden of establishing that the [2016 IEP]
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represented an offer of [a] FAPE . . . as required under the [IDEA],” and that the
mother “failed to meet [her] burden of establishing that [her child] was denied [a]
FAPE as a result of procedural violations alleged in the development of the IEP.”
Id. (first, second, third, fourth, and sixth alterations in original).
The mother appealed to federal district court, claiming “(1) the District had
committed various procedural and substantive IDEA violations resulting in the
denial of a FAPE to [her son], and (2) the District had predetermined to place [her
son] in [another school] instead of Alpine.” Id. The district court disagreed and
upheld the ALJ’s decision on the merits. See id. at 1038–39. The mother
appealed, “reasserting the various procedural and substantive IDEA violations she
argued before the district court.” Id. at 1039.
Relying heavily on Steven R.F., we again concluded the mother’s appeal
was moot, and could not meet the capable-of-repetition-yet-evading-review
exception. “As was the case in Steven R.F.,” Nathan M.’s mother “allege[d] a
variety of procedural and substantive IDEA violations regarding [her son’s] 2016
IEP.” Id. at 1044. Evaluating “in turn” whether each alleged IDEA violation
“[was] likely to recur,” we reasoned that the mother, to start, “ma[de] no attempt
to show that any alleged procedural violations of the IDEA are capable of
repetition,” thereby “seemingly waiv[ing] any argument that th[ose] various . . .
violations . . . [were] not moot.” Id. Notwithstanding these preservation
problems, we concluded that the mother had failed to establish that any of the
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alleged violations—procedural or substantive—were “likely to recur.” Id. We
concluded that, because “our decision on the merits of [the child’s] 2016 IEP
could have no effect ‘in the real world,’ and could do nothing to avoid future
conflict,” the case was moot “and not capable of repetition but evading review.”
Id. at 1046 (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601
F.3d 1096, 1110 (10th Cir. 2010)).
5
Following supplemental briefing on the mootness issue, the district court
held the entire case was moot. See generally Patrick G., 2020 WL 5877604. It
first examined the Parents’ core claim that the District had denied Patrick a
FAPE. The court noted that, as in Steven R.F. and Nathan M., no party disputed
“that th[e] action [was] technically moot insofar as the 2016 IEP ha[d]
concluded.” Id. at *4. Thus, the critical question was “whether Patrick’s parents
. . . established that it [was] reasonably likely that the District w[ould] commit the
same alleged violations of the IDEA” in the future. Id.As to the Parents’ first four asserted violations, the court held that these
“appear[ed] to be procedural” and, more to the point, the Parents “d[id] not cite to
anything in the record indicat[ing] that they [were] likely to be repeated.” Id. at
*5. Under Nathan M., then, these allegations were moot. Likewise, Patrick’s
parents “d[id] not identify why a future IEP would not include” a behavioral
intervention plan for Patrick—an alleged deficiency of the 2016 IEP. Id. Nor did
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the Parents “identify certain behaviors that the District failed to consider, much
less explain why the behavioral accommodations included in the 2016 IEP were
insufficient.” Id. While the Parents disagreed with the District’s decision
regarding a behavioral intervention plan (or the lack of a need for one), “there
[was] nothing presented to suggest that consideration of [such a plan] in the
future would not occur, or that strategies to regulate [Patrick’s behavior] would
not be employed.” Id. This dispute, then, “appear[ed] to be a factual one limited
to the 2016 IEP.” Id.The district court then turned to the Parents’ alleged “substantive”
violations. It reasoned that the Parents’ lack of explanation surrounding how
“Mountain Vista denie[d] Patrick a FAPE, and how [such a] denial [was] likely to
continue” was too “vague” to show an ongoing controversy. Id. at *6; see id.(“[A]lthough Patrick’s parents preferred that he attend Alpine, there is no
showing that their disagreement with the District will be a ‘continuing
controversy’ that presents legal questions rather than simply fact specific
challenges to the 2016 IEP.” (quoting Nathan M., 942 F.3d at 1045)). The court
also rejected the argument from Patrick’s parents that “their dispute [was] an
ongoing legal disagreement ‘based on school district policy/philosophy that
favors academic progress over behavioral progress.’” Id. (quoting Aplts.’ App.,
Vol. II, at 490). “How . . . different philosophies play out . . . is fact-specific to a
given IEP,” and, therefore, the court declined to “speculate[,] based on an expired
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IEP, how future IEPs might be formulated.” Id. Patrick’s parents, then, “failed to
establish that [it was] reasonably likely that the District w[ould] commit the same
alleged violations of the IDEA at some point in the future.” Id.
Notably, the district court reached the same mootness conclusion with
regard to the Parents’ “claim for recovery of monetary damages such as
reimbursement of educational and related services, attorney fees and injunctive
relief.” Id. The court pointed out that the “substantive claims which pertain only
to the expired 2016 IEP are moot”; “[a]s a consequence, there [was] no monetary
remedy to which Patrick’s parents [were] entitled.” Id.; see id. at *6 n.6 (noting
that “the District ha[d] agreed to pay for Patrick’s tuition at Alpine and issued a
check in an undisputed amount for the time period from May 20, 2016 through
February 28, 2017 payable to both Patrick’s parents and TRICARE”). Similarly,
the Parents were not entitled to a “stay put” injunction because such an injunction
would be “based upon . . . substantive claims that are now moot”—thus, “it too
[would be] moot.” Id. at *6 n.6; see id. at *6 n.8 (“[T]he pending request for a
‘stay put’ order to continue Patrick’s placement at Alpine is moot because it is
premised on the substantive claims previously addressed.” (citation omitted)).
Nor could the court consider the Parents’ attorney’s fee claim, because
determining whether they were “prevailing part[ies]” would “require the
determination of the merits of moot claims.” Id. at *7.
Accordingly, the court dismissed the suit in its entirety, having found “that
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all claims asserted . . . [were] moot.” Id. This appeal followed.
II
This appeal requires us to decide whether the Parents’ claims are moot.
The “existence of a live case or controversy is a constitutional prerequisite to
federal court jurisdiction.” Garcia v. Bd. of Educ. of Albuquerque Pub. Schs.,
520 F.3d 1116, 1123 (10th Cir. 2008) (quoting McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996)); see Nathan M., 942 F.3d at
1040 (“Our jurisdiction under Article III extends only to ‘actual, ongoing
controversies.’” (quoting Honig v. Doe, 484 U.S. 305, 317 (1988))). “We review
questions of constitutional mootness de novo.” Ajaj v. Fed. Bureau of Prisons, 25
F.4th 805, 810 (10th Cir. 2022).
“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.’” Steven R.F., 924 F.3d at 1313 (quoting Garcia,
520 F.3d at 1123); see Garcia, 520 F.3d at 1123 (explaining that the case-or-
controversy requirement “means that, throughout the litigation, the plaintiff must
have suffered, or be threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial decision” (quoting Spencer v.
Kemna, 523 U.S. 1, 7 (1998))). “The crucial question” in our mootness analysis
is whether our decision “will have some effect in the real world.” Prison Legal
News v. Fed. Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019) (quoting
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Brown v. Buhman, 822 F.3d 1151, 1165–66 (10th Cir. 2016)). Thus, “[i]f an
actual controversy ceases to exist at any stage of litigation”—viz, if our resolution
of a claim will no longer have any effect in the real world—“the case has become
moot and should be dismissed.” Nathan M., 942 F.3d at 1040.
Of course, some controversies may be so brief in duration that courts
cannot resolve their underlying issues—even though nearly identical issues will
continue to resurface in future cases. These cases, “which appear technically
mooted, [but] are in reality live controversies because they will recur and again
evade review,” fall under the eponymous “capable of repetition yet evading
review” exception to mootness. Id. (quoting Taxpayers for the Animas-La Plata
Referendum v. Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1478
(10th Cir. 1984)). This doctrine “applies only in ‘exceptional situations,’” Steven
R.F., 924 F.3d at 1313 (quoting Spencer, 523 U.S. at 17), but it can prevent
dismissal of an otherwise moot dispute “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,’” Nathan M., 942 F.3d at 1040 (alteration in
original) (quoting Steven R.F., 924 F.3d at 1313). “[T]he party asserting the
exception . . . bears the burden of establishing that it applies.” Id.
The Parents’ claims center on two core issues that implicate our mootness
doctrine and the capable-of-repetition exception. First—as in Steven R.F. and
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Nathan M.—we must determine whether their claims that the School District
denied Patrick a FAPE in his 2016 IEP fall under the capable-of-repetition
exception to mootness. We conclude that the exception does not apply;
consequently, we lack jurisdiction over these claims. Second, we must decide
whether our mootness determination as to the Parents’ substantive IDEA claims in
turn renders moot their claims for attorney’s fees, reimbursement for past
violations, and enforcement of the § 1415(j) stay-put order. Addressing each
issue separately, we hold the Parents’ attorney’s fee and reimbursement claims
present live controversies which the district court incorrectly dismissed as moot.
The Parents’ stay-put claim for injunctive relief, however, is moot. We thus
affirm the district court’s dismissal of the substantive IDEA and stay-put claims
for lack of jurisdiction, while reversing and remanding its determination as to the
Parents’ attorney’s fee and reimbursement claims.
A
We first hold that the Parents’ substantive IDEA claims are moot. As noted
above, “[i]f an actual controversy ceases to exist at any stage of litigation, the
case has become moot and should be dismissed.” Nathan M., 942 F.3d at 1040.
The Parents do not seriously contest that Patrick’s 2016 IEP has expired,
rendering their IDEA claims—all of which challenge aspects of the 2016 IEP and
the procedures used to adopt it—technically moot. Rather, they contend that the
“capable of repetition, yet evading review” exception applies. See Aplts.’
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Opening Br. at 23 (claiming this case is capable of repetition, yet evading review,
because “the heart of th[e] case involves an irreconcilable dispute between the
Parents and the School District about Patrick’s educational placement needs,
which will be an issue of controversy every time the School District develops a
new IEP or proposes a new placement” (emphasis added)).
The first prong of the exception—which requires the challenged action to
be too short to be fully litigated—is “clearly satisfied,” because the 2016 “IEP is,
by its nature, ‘too short [in duration] to be fully litigated prior to its . . .
expiration.’” Steven R.F., 924 F.3d at 1313 (alteration and omission in original)
(quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam)); see also
Nathan M., 942 F.3d at 1040 (holding a parent had “easily satisfie[d] the first
prong of the capabable-of-repetition-yet-evading-review exception” because
“IEPs are short-lived—lasting for only a single school year—and judicial review
is not”). We thus turn to the “pivotal issue” in the IEP controversy; that is,
whether there is a “‘reasonable expectation’ that [Patrick] will be subjected to the
same action again.” Steven R.F., 924 F.3d at 1314. We conclude that no such
“reasonable expectation” exists as to the Parents’ asserted IDEA violations.
1
In determining whether the Parents’ substantive IDEA claims meet the
second prong of the capable-of-repetition exception, we do not write on a blank
slate. We thus more thoroughly examine the holdings of Steven R.F. and Nathan
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M.—our prior mootness decisions in the IDEA context—to determine the
principles that govern our decision here.
First, in Steven R.F., we concluded that a school district could not invoke
the capable-of-repetition exception because it failed to show a reasonable
expectation that it would be subject to the same action again. This was so,
because the challenges at issue—the district’s purported violation of an earlier
SCO order, its failure to base its decisions on the student’s educational needs, its
wrongful predetermination of the student’s placement, and its omission of a
written offer of educational placement—“were based on specific actions that [the
mother] alleged the District did not take in relation to [her son’s] 2016–2017
IEP.” Steven R.F., 924 F.3d at 1316.
We reasoned that the school district, as the proponent of the mootness
exception, bore the burden of showing the exception applied, yet “there [was] no
reason to conclude—mu[ch] less a demonstrated probability—that any subsequent
IDEA challenge will be premised on the same procedural shortcomings by the
District that [the] [m]other challenge[d] in this case,” and “[n]othing suggest[ed]
that the[] alleged procedural failures w[ould] be at issue in any subsequent IDEA
challenge[s].” Id. at 1315–16 (emphasis added). “Even assuming . . . [the]
reasonable expectation of future IDEA disputes between the District and [the]
[m]other”—indeed, even assuming the question of “whether the District w[ould]
have to maintain [the child’s] enrollment at Alpine” would be raised by the
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mother in future challenges—such expectations “d[id] not satisfy the mootness
exception in this case because the procedural challenges [the] [m]other raise[d]
[were] fact-specific to [her son’s] 2016–2017 IEP proceedings.” Id. at 1314.
Thus, “[i]f we decided . . . more than three years after the challenged actions[]
whether those alleged failures amounted to a violation of the IDEA, we ‘would be
issuing, in effect, an advisory opinion,’” which 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.” Id. at 1316 (emphasis added)
(quoting Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 599–600 (7th
Cir. 2006)); see also id. at 1314–15 (noting that the mother, in effect, got the
relief she sought originally because her son “remained at Alpine for,” at least,
“the 2016–2017 schoolyear” by operation of the IDEA’s stay-put provision).
In Nathan M., we further detailed the precise contours of the second-prong
inquiry in the IDEA context. We noted first that the difficulty in assessing the
second prong—i.e., whether there was “a reasonable expectation that the same
complaining party would be subjected to the same action again”—“stem[med], in
part, from a lack of precision in our cases describing exactly what must be likely
to recur.” Nathan M., 942 F.3d at 1041 (quoting Murphy, 455 U.S. at 482).
Steven R.F., however, “clarified the target of our capable-of-repetition inquiry in
IDEA disputes: ‘[T]he capable-of-repetition exception in the IDEA context looks
at the likelihood that the specific IDEA violations alleged will be repeated.’” Id.29
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at 1042 (alteration in original) (quoting Steven R.F., 924 F.3d at 1316). “Put
another way, ‘the “wrong” that is, or is not, “capable of repetition” must be
defined in terms of the precise controversy it spawns.’” Id. at 1043 (quoting
People for Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 422 (D.C.
Cir. 2005)). 7
“Pulling these various threads together,” we held that,
to satisfy the second prong of the capable-of-repetition exception
to mootness, [the aggrieved parent] bears the burden of
establishing that it is “reasonably likely that the District will
again violate the IDEA in the specific ways that [she] alleges it
did in this case.” She may not generally allege that the District
will deny [her child] a FAPE at some point in the future. There
must exist a “continuing controvers[y]” between the parties
presenting “legal questions” for resolution, ensuring that our
7
The aggrieved mother in Nathan M. attempted to distinguish Steven
R.F. based on the type of challenges raised in that case; unlike Steven R.F., she
asserted that her appeal “involve[d] substantive violations of the IDEA, or
‘fundamental disagreements between the parties about what special education and
related services and what educational placement and programming [her son]
need[ed] in order to receive a [FAPE].’” Nathan M., 942 F.3d at 1042 (quoting
Aplt.’s Supp. Br., No. 19-1008, at *5–6 (10th Cir. Aug. 12, 2019)). In the
mother’s eyes, “she and the District ha[d] a ‘reasonable expectation’ of rehashing
. . . fundamental, substantive disagreements every year, [thereby] satisfying the
mootness exception’s second prong.” Id. But we posited that the mother “ha[d]
learned the wrong lesson from Steven R.F.” in making her procedural-substantive
distinction. Id. Indeed, “[n]othing in Steven R.F. support[ed] [the mother’s]
argument that we require less specificity when faced with substantive rather than
procedural challenges.” Id. “To the contrary,” Steven R.F. “teaches that we
demand specificity in all cases to ensure that our disposition of a technically moot
but capable-of-repetition controversy will help to ‘define the contours of the
parties’ continuing legal relationship under the IDEA such that future repetitions
of the injury could be avoided.’” Id. at 1042–43 (quoting Steven R.F., 924 F.3d at
1316).
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decision on the merits will “define the contours of the parties’
continuing legal relationship under the IDEA such that future
repetitions of the injury could be avoided.” A pattern of related
but distinct and factually specific controversies will not suffice
because our resolution of one dispute will leave the others
unresolved and just as likely to occur in the future.
Id. (second and fourth alterations in original) (citations and footnote omitted)
(first quoting Steven R.F., 924 F.3d at 1316; then quoting Gittens, 396 F.3d at
422–23; and then quoting Steven R.F., 924 F.3d at 1316).
Applying this analysis to the facts in Nathan M., we concluded that the case
did not satisfy the capable-of-repetition exception. “As was the case in Steven
R.F.,” Nathan M.’s mother “allege[d] a variety of procedural and substantive
IDEA violations regarding [her son’s] 2016 IEP.” Id. at 1044. To decide whether
these alleged violations satisfied the exception, we did not consider them “in
gross,” but rather considered “the likelihood that [each] specific IDEA violation[]
alleged w[ould] be repeated.” Id. (first quoting Lewis v. Casey, 518 U.S. 343,
358 n.6 (1996); and then quoting Steven R.F., 924 F.3d at 1316). For instance,
with regard to the allegations that the district “predetermined [her son’s]
educational placement” and “failed to review current evaluation data in
developing [her son’s] IEP,” the mother “entirely fail[ed] to address why a
‘reasonable expectation’ exist[ed] that the District w[ould] again commit these
procedural violations.” Id.; see id. (seeing “no basis in the record for assuming,
without any facts or even an allegation . . . , that the District will again
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predetermine [the child’s] placement or review outdated evaluation data”).
Likewise, the mother “d[id] not allege that the District would again fail to .
. . ensure the attendance of Alpine staff at IEP meetings.” Id. And the mother’s
allegations that the district’s IEP process “failed to properly consider [her son’s]
behaviors and develop an adequate [behavioral intervention plan],” or “provide
special education and related services necessary to allow [her son] to make
progress appropriate in light of his circumstances,” “suffer[ed] from a fatal
vagueness.” Id. at 1044–45. Moreover, the mother failed to demonstrate how
these allegations subsumed ongoing “‘legal questions’ [needing] resolution,”
rather than “fact-specific disagreement[s] unlikely to recur in a recognizable form
in a future IEP.” Id. at 1045 (quoting Gittens, 396 F.3d at 422–23).
Thus, “[n]othing in [the mother’s] briefing hint[ed] at a ‘precise
controversy’ presenting ‘legal questions’ for our decision.” Id. at 1046 (quoting
Gittens, 396 F.3d at 422–23). And “[a]lthough [the mother] and the District may
continue to lock horns over [her child’s] educational placement, their dispute
ha[d] not sharpened into a specific legal controversy that [we were] capable of
resolving.” Id. Accordingly, because “our decision on the merits of [the child’s]
2016 IEP could have no effect ‘in the real world,’ and could do nothing to avoid
future conflict,” the case was moot “and not capable of repetition but evading
review.” Id. (citations omitted) (quoting Rio Grande Silvery Minnow, 601 F.3d at
1110).
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The upshot of our holdings in Steven R.F. and Nathan M. is that an IDEA
claim is capable of repetition in the mootness context only when an asserted
IDEA violation involves an ongoing legal controversy that our decision may
actually resolve; “[a] pattern of related but distinct and factually specific
controversies will not suffice.” Nathan M., 942 F.3d at 1043. And a party
asserting that a legal issue is capable of repetition must frame this issue with
specificity. Vague assertions that a school district and a student’s parents will
continue to “lock horns” over a student’s placement cannot, on their own, make
out a reasonable probability that the same legal controversy will repeat itself. See
id. at 1046. With these controlling parameters in mind, we turn to Patrick’s
parents’ asserted controversy.
2
Patrick’s parents have not shown a reasonable expectation that the specific
IDEA violations they have alleged—all of which are based on Patrick’s now-
expired 2016 IEP—will be repeated. In their due process complaint, the Parents
asserted that the School District violated the IDEA because it (1) failed to
conduct a “full or adequate reevaluation of Patrick . . . that was necessary to
develop an appropriate IEP,” (2) failed to “include any staff from Patrick’s
current educational placement at Alpine” or other “individuals who had specific
and current knowledge about Patrick and his educational needs” at his IEP
meeting, and (3) “pre-determined Patrick’s educational placement at Mountain
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Vista” by writing his IEP “specifically for the classroom at Mountain Vista in
which they wished to place him.” Aplts.’ App., Vol. III, at 602 (emphasis added).
Before the district court, Patrick’s parents further specified that the School
District violated the IDEA because (1) the 2016 IEP was “not appropriately
ambitious,” id., Vol. I, at 89–90 (D. Ct. Opening Br., filed Sept. 22, 2017)
(capitalization omitted); (2) the District failed to conduct a full evaluation in
formulating the IEP, see id. at 90–92; (3) the District failed to invite Alpine
representatives to IEP meetings, see id. at 92–93; (4) the District failed to
consider behaviors and develop a behavior intervention plan for the IEP, see id. at
93–95; (5) the District unilaterally limited certain services in the IEP, see id. at
95–97; and (6) the District pre-determined Patrick’s placement at a 2015 meeting
in advance of formulating the 2016 IEP, see id. at 97–98.
As evident from the foregoing, all of the Parents’ IDEA claims center on
the District’s actions—or lack of actions—in developing the 2016 IEP.
Accordingly, those claims the Parents actually raised in the administrative
proceedings and before the district court evince a series of fact-specific disputes
over a particular IEP that has since been superseded, not a sweeping challenge to
the District’s policies or educational philosophies. Under our precedents
examining mootness in the IDEA context, the Parents bear the burden of showing
“the likelihood that the specific IDEA violations alleged will be repeated.”
Steven R.F., 924 F.3d at 1316 (emphasis added). They have not carried this
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burden.
Indeed, the Seventh’s Circuit’s opinion in Brown—which we relied upon in
Steven R.F. and Nathan M.—illustrates why the Parents’ IDEA claims do not
come under the “capable of repetition” umbrella:
Here, [the student’s] autism presents an evolving set of
challenges for educators, one that requires his IEP to be
periodically revised. What was right for [the student] in
kindergarten may not be the proper educational program when he
enters the third grade. The dispute over the [earlier] IEP turned
on whether [the student] was ready for full-time mainstream
class. Now, as a nine-year old, [the student’s] readiness for
mainstream education presents a different question calling for
reassessment of his educational development. Were we to
decide, at this later date, whether mainstreaming was right for
[him] back in 2002–2003, we would be issuing, in effect, an
advisory opinion. Our decision would merely tell the parties who
was correct about [the student’s] outdated IEP. 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. The case therefore must be dismissed
as moot.
Brown, 442 F.3d at 599–600; accord Nathan M., 942 F.3d at 1043, 1046;
Steven R.F., 924 F.3d at 1316; see also J.T. v. District of Columbia, 983
F.3d 516, 525–26 (D.C. Cir. 2020) (discussing both Nathan M. and Brown
and finding that they “provide persuasive support for the conclusion” that
the student’s “precise controversy alleged in [his due process]
complaint . . . does not present the type of recurring legal question”—i.e., a
“recurring legal question[] arising from the [IDEA]”—that “the capable of
repetition but evading review exception to mootness was designed to
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permit”).
On appeal—perhaps in recognition of the uphill challenge their
claims face in the wake of Nathan M. and Steven R.F.—the Parents attempt
to reframe their argument to show a reasonable expectation that the School
District will continue to violate the IDEA. Without addressing their
specific arguments in either the due process complaint or before the district
court, 8 they assert that the “heart of this case involves an irreconcilable
dispute between the Parents and the School District about Patrick’s
educational placement needs, which will be an issue of controversy every
time the School District develops a new IEP or proposes a new placement.”
Aplts.’ Opening Br. at 23.
But this attempt to course-correct—from a challenge to the School
8
As the School District points out, Patrick’s parents do not raise
several of their specific IDEA challenges—like the District’s failure to include
representatives from Alpine, its failure to conduct an adequate student
reevaluation, its failure to include a special education teacher in certain
evaluations, and its actions to predetermine his placement—in their opening brief
on appeal. See Aplee.’s Resp. Br. at 15 (noting that Patrick’s parents “do not
challenge the mootness of the[] 2016 procedural claims and do not cite to
anything in the record indicative that these claims . . . are apt to be repeated”).
Patrick’s parents have thus waived these arguments. See United States v. Black,
369 F.3d 1171, 1176 (10th Cir. 2004) (“Failure to raise an issue in the opening
appellate brief waives that issue.”); see also Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007) (noting that “we routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief”). And, based on our holdings in Nathan M. and Steven R.F., the
challenge that they preserve on appeal is plainly insufficient to meet the capable-
of-repetition exception.
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District’s alleged shortcomings in formulating a specific IEP to a challenge
about Patrick’s educational placement—is both procedurally improper and
substantively insufficient. On a procedural level, the IDEA required the
Parents to administratively exhaust any of their claims that the District had
denied Patrick a FAPE before suing in federal court. See 20 U.S.C.
§ 1415(i)(2)(A); see also Fry v. Napoleon Comm. Schs., 580 U.S. 154, 137
S. Ct. 743, 752 (2017) (reaffirming the proposition that a plaintiff must
exhaust the IDEA’s procedures when a suit “seek[s] relief for the denial of
a FAPE”). Among the requisite procedures, the Parents had to specify in
their due process complaint the precise issues for which they sought relief.
See 20 U.S.C. § 1415(f)(3)(B). If they failed to raise issues in their
complaint, the IDEA provides that they “shall not be allowed to raise [new]
issues” in their due process hearing “unless the other party agrees
otherwise.” Id. Accordingly, by attempting to raise on appeal an
argument that they did not raise in their administrative proceedings, the
Parents have failed to satisfy the IDEA’s exhaustion requirement. See
Cnty. of San Diego v. California Special Educ. Hearing Off., 93 F.3d 1458,
1465 (9th Cir. 1996) (holding a party was precluded from asserting an
IDEA argument before the district court that was not raised in the due
process complaint). They cannot salvage their otherwise moot claims by
reframing them in broader, less defined terms. Cf. J.T., 983 F.3d at 526–27
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(observing, in the IDEA context, that “the assertion of broader injuries than
those alleged in a complaint [should be] me[t] with skepticism in evaluating
mootness, if they are considered at all”); Clarke v. United States, 915 F.2d
699, 703 (D.C. Cir. 1990) (en banc) (“[W]here plaintiffs are resisting a
mootness claim we think they must be estopped to assert a broader notion
of their injury than the one on which they originally sought relief.”).
Substantively, the Parents’ new argument also runs afoul of Nathan
M. and Steven R.F. by failing to pinpoint a “‘precise controversy’
presenting ‘legal questions’ for our decision,” so we may evaluate “the
likelihood that [each] specific IDEA violation[] alleged will be repeated.”
Nathan M., 942 F.3d at 1044, 1046 (first quoting Gittens, 396 F.3d at
422–23; and then quoting Steven R.F., 924 F.3d at 1316). Instead, they
generically and vaguely assert that they are likely to keep arguing with the
District over Patrick’s educational placement in the coming months and
years due to “an irreconcilable dispute between the Parents and the School
District about [his] educational placement needs.” See, e.g., Aplts.’
Opening Br. at 23 (claiming this case is capable of repetition, yet evading
review, because the “irreconcilable dispute . . . about Patrick’s educational
placement needs . . . will be an issue of controversy every time the School
District develops a new IEP or proposes a new placement” (emphasis
added)).
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But such a claim is precisely the type of dispute we said was
insufficient to meet the “capable of repetition” exception in the IDEA
context. See Nathan M., 942 F.3d at 1043, 1046 (noting, inter alia, that (1)
“the ‘wrong’ that is, or is not, ‘capable of repetition’ must be defined in
terms of the precise controversy it spawns”; (2) the aggrieved party “may
not generally allege that the District will deny [the student] a FAPE at some
point in the future”; and (3) the sheer possibility “[the parents] and the
District may continue to lock horns over [the student’s] educational
placement” has not “sharpened into a specific legal controversy that this
court is capable of resolving” (quoting Gittens, 396 F.3d at 422)).
Although the Parents cite several cases that they claim counsel in
favor of applying the capable-of-repetition exception in this instance, these
cases are readily distinguishable; indeed, some we have already
distinguished in prior cases. For example, the Parents invoke the Fifth
Circuit’s decision in Daniel R.R. v. State Board of Education, in which the
court applied the capable-of-repetition exception to a dispute over whether
the student ought to be “mainstreamed”, as the “inverse” of the dispute in
this case. See Aplts.’ Opening Br. at 24–25 & n.5 (citing Daniel R.R. v.
State Bd. of Educ., 874 F.2d 1036, 1039–41 (5th Cir. 1989)). In Nathan M.,
however, we explained that attempts to rely on Daniel R.R. were
“misplaced,” because the “legal controversy [in that case] did not depend
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on the facts of a particular IEP, but on the parties’ understanding of the
IDEA’s mainstreaming obligation.” Nathan M., 942 F.3d at 1045 n.9. In
contrast, where the school district and a parent “d[id] not . . . disagree on
any of the IDEA’s requirements, or even the kind of supports and services
[the student] require[d],” and had “given us no reason to assume” that the
an identical disagreement “on the degree of the supports required or
offered” at particular schools “w[ould] be present in a future IEP,” it
rendered Daniel R.R. distinguishable. Id.
The Parents do not explain why Daniel R.R. is more applicable to
this dispute—which is based on fact-specific due process challenges to an
expired IEP—than it was to the dispute in Nathan M. Nor does our
precedent allow them to so broadly define their legal dispute (e.g., an
allegation that the district court denied Patrick a FAPE, generally) to
suddenly bring their claim within Daniel R.R.’s purview. 9
The Parents’ reliance on the Supreme Court’s decisions in Honig and
Rowley is also misplaced. In Steven R.F., we addressed Honig—in which
the Supreme Court held a challenge to a school district’s policy of
indefinitely excluding disabled children for violent conduct to be capable of
9
Of course, even if Daniel R.R. was exactly on point, it cannot bind or
govern our disposition—and it does not help the Parents when they have offered
very little to distinguish their circumstances from those we found moot in Steven
R.F. and Nathan M.
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repetition because of the “certainty of the continued dispute.” See Steven
R.F., 924 F.3d at 1315–16. There, we held “there [was] no reason to
conclude—mu[ch] less a demonstrated probability—that any subsequent
IDEA challenge w[ould] be premised on the same procedural shortcomings
by the District that [the parent] challenge[d].” Id. at 1315; see also Nathan
M., 942 F.3d at 1043 n.7 (“Deciding Honig on its merits allowed the Court
to resolve the legality of the school district’s policy of unilaterally
removing disabled students who engaged in disruptive behavior from public
school. . . . Had the District here relied on a similar policy or blanket rule
to eliminate Alpine as a possible placement for [the student], [he] likely
could meet the capable-of-repetition exception. But here, the District
determined [the student’s] placement by examining the then-existing
circumstances particular to [the student’s] age, needs, and development.”).
A similar conclusion is apt here. The Parents do not raise any kind of
policy challenge in this case. Likewise, they cannot rely on a case like
Rowley, which presented a question of “statutory interpretation” and
discussed a mootness argument only in passing. See Rowley, 458 U.S. at
179, 186 n.9. With no controlling authority to the contrary, Nathan M. and
Steven R.F. govern our disposition of this case. 10
10
Patrick’s parents point to a few additional out-of-circuit decisions in
(continued...)
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Finally, beyond their bid to reframe their substantive challenge in
broader terms, the Parents also strive, unsuccessfully, to argue that their
disputes have already recurred. On this score, they point to the 2019 and
2020 IEPs developed by the District and Patrick’s IEP Team as evincing
disputes similar to or identical to those that generated the original due
process complaint. See Aplts.’ Opening Br. at 29–30. But this argument is
little more than the Parents’ reframing argument dressed in a different
guise: the ongoing “specific legal controversy” in Patrick’s 2019 and 2020
IEPs involves the School District’s “reject[ion] [of] the autism-specific
10
(...continued)
which courts have held that controversies about “conflicting educational
philosophies,” see Sacramento City Unified Sch. Dist. v. Rachel H. ex rel.
Holland, 14 F.3d 1398, 1403 (9th Cir. 1994), and “irreconcilable views on the
extent to which the IDEA requires a school to provide services,” see Rome Sch.
Comm. v. Mrs. B., 247 F.3d 29, 32 (1st Cir. 2001), were capable of repetition yet
evading review, see Aplts.’ Opening Br. at 26. But the Parents fail to explain
how these cases distinguish our otherwise on-point precedent—especially in the
IDEA context, which is sensitive to the unique circumstances of each child. Cf.
Ellenberg, 478 F.3d at 1277 (noting that our review in the IDEA context “is
necessarily fact-intensive, requiring careful analysis of the particular child’s
needs and abilities”). Furthermore, our independent analysis of these cases
reveals that they continue to draw a firm line between “factual dispute[s]” over
IEPs, which “change shape as the years go on” and more fundamental disputes
over whether “the IDEA requires a school to provide [certain] services.” Rome
Sch. Comm., 247 F.3d at 32; see Rachel H., 14 F.3d at 1402–03 (distinguishing
between a dispute over an appropriate placement in a given year and a “view that
a child with [a certain] IQ is too severely disabled to benefit from full-time
placement in a regular class”); see also Jenkins v. Squillacote, 935 F.2d 303, 308
(D.C. Cir. 1991) (applying exception where “both litigants readily agreed that
[the controversy] . . . is a recurring one”).
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separate school and adopt[ion] of a public school placement.” Id. at 29. As
we have already noted, a continuing dispute over where Patrick should go
to school, without more, does not evince the specificity we required in
Steven R.F. and Nathan M. Nor does it describe the specific allegations
raised in the original due process complaint, which included allegations
that the District, inter alia, failed to provide Patrick with SLP and OT
services, failed to conduct certain evaluations with respect to the 2016 IEP,
failed to include Alpine staff in meetings concerning the 2016 IEP, and
denied Patrick’s parents a meaningful opportunity to participate in crafting
the 2016 IEP. See generally Aplts.’ App., Vol. III, at 602–03.
It is not enough for Patrick’s parents to claim that they continue to
“lock horns” over Patrick’s education, see Nathan M., 942 F.3d at 1046;
rather, the Parents must demonstrate that the “IDEA violations [they
originally] assert[ed] are likely to happen again,” Steven R.F., 924 F.3d at
1316. They have not done this.
Patrick’s factual circumstances have no doubt changed in the five
years since he originally brought the due process complaint at issue here.
Furthermore, that complaint alleged numerous violations by the District
with regard to the long-expired 2016 IEP. Patrick’s parents do not
demonstrate how these allegations still represent a live controversy—or a
controversy capable of repetition, yet evading review—and “the record
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does not indicate that it is reasonably likely that the District will again
violate the IDEA in the specific ways that [they] allege[] it did in this
case.” Id. (emphasis added). Thus, because the Parents’ substantive claims
are moot and fall outside of the capable-of-repetition exception, we uphold
the district court’s dismissal of these claims.
B
Our analysis does not end, however, in holding Patrick’s substantive
challenges to his IEP moot. Unlike in Nathan M. and Steven R.F., the
district court came to the additional conclusion that, because Patrick’s
substantive challenges to his IEP were moot, so too were his claims for
attorney’s fees as a prevailing party in the administrative proceedings, for
compensatory relief based on the School District’s failure to reimburse him
as a single-payee, and for an injunction maintaining his educational
placement during the pendency of the proceedings. See Patrick G., 2020
WL 5877604, at *6–7. Patrick’s parents contend, the outcome of their
IDEA claims notwithstanding, that the district court erred in failing to
decide these claims. This appeal thus requires us to resolve the extent that
our mootness holding as to the Parents’ substantive IDEA claims renders us
incapable of affording Patrick other “real world” relief.
We separately evaluate each claim to determine whether it presents
an actual, ongoing controversy. See Nathan M., 942 F.3d at 1044 (“[W]hen
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it comes to mootness, ‘[e]ach claim must stand or fall on its own.’”
(quoting Taxpayers for the Animas-La Plata Referendum, 739 F.2d at 1479
n.2)); cf. Prison Legal News, 944 F.3d at 880 (explaining that we “must
decide whether a case is moot as to ‘each form of relief sought’” (quoting
Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019))). We hold that
the attorney’s fee issue and alternative-payee issue are not moot, and
reverse and remand back to the district court to allow it to rule on the
merits of these claims in the first instance. As to the stay-put issue,
however, we hold that the claim—as framed by the Parents—is moot.
1
Patrick’s parents first argue their claim for attorney’s fees is not
moot because it continues to present a live controversy independent of their
substantive IDEA claims. As a general matter, we have held that “a district
court may still award attorney’s fees after dismissing [an] underlying action
for lack of subject-matter jurisdiction. This is because a claim for
attorney’s fees gives rise to issues separate and distinct from the merits of
the original cause of action.” D.A. Osguthorpe Fam. P’ship v. ASC Utah,
Inc., 705 F.3d 1223, 1236 (10th Cir. 2013) (citation and footnote omitted);
cf. United States ex rel. Grynberg v. Praxair, Inc., 389 F.3d 1038, 1057–58
(10th Cir. 2004) (holding that a court maintained jurisdiction to award
attorney’s fees for vexatious litigation when the underlying False Claims
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Act suit was dismissed for lack of subject matter jurisdiction). And we
have previously held this principle applies where substantive claims are
moot, reasoning that “[w]hile a claim of entitlement to attorney’s fees does
not preserve a moot cause of action, the expiration of the underlying cause
of action does not moot a controversy over attorney’s fees already
incurred.” Dahlem ex rel. Dahlem v. Bd. of Educ. of Denver Pub. Schs.,
901 F.2d 1508, 1510–11 (10th Cir. 1990) (emphasis added) (citation
omitted).
These principles are equally applicable in the IDEA context. Parents
“prevail [on IDEA attorney’s fee claims] ‘“when actual relief on the merits
of [the child’s] claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly
benefits the [parents].”’” Miller, 565 F.3d at 1247 (second alteration in
original) (quoting Urban v. Jefferson Cnty. Sch. Dist. R-1, 89 F.3d 720, 729
(10th Cir. 1996)); accord Fowler v. Unified Sch. Dist. No. 259, 128 F.3d
1431, 1439 (10th Cir. 1997) (noting that “Congress intended the term
‘prevailing party’ to mean the same under [the IDEA] as it does under 42
U.S.C. § 1988” (quoting Urban, 89 F.3d at 728–29)). Under the IDEA,
“prevailing parties” in administrative proceedings must seek attorney’s fees
in the district court after these proceedings have concluded. See 20 U.S.C.
§ 1415(i)(3)(B); see Bd. of Educ. of Oak Park v. Nathan R. ex rel. Richard
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R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) (acknowledging that “a party
may file an independent suit in the district court to recover attorneys’ fees
from an IDEA administrative proceeding” and that such suit is, “[i]n fact,
the only means by which a party may recover attorneys’ fees for the
administrative proceedings . . . because [the IDEA] only authorizes the
courts, and not the administrative hearing officer, to award the attorneys’
fees”); see also R. M-G v. Bd. of Educ. for the Las Vegas City Schs., 645 F.
App’x 672, 677 (10th Cir. 2016) (unpublished) (“The IDEA clearly allows
the pursuit of a lawsuit solely to recover fees.”). “[T]he ‘magnitude of the
relief obtained’ is irrelevant for determining the prevailing party,” though
the “degree of the plaintiff’s overall success goes to the reasonableness of a
fee award.” Miller, 565 F.3d at 1247 (quoting Farrar v. Hobby, 506 U.S.
103, 114 (1992)).
Because the question of whether Patrick’s parents were a “prevailing
party” in the administrative proceedings remains a live controversy
independent from the substantive IDEA challenge in the district court, their
attorney’s fee claim is not moot. Their request for attorney’s fees in the
district court was based on what they contend was partial merits relief in
their favor from the ALJ. The administrative due process proceedings
became final before the Parents’ IEP expired. Patrick’s parents incurred
the attorney’s fees in question during these proceedings. And the
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prevailing party analysis simply seeks to determine whether Patrick’s
parents should be awarded these fees based on the settled outcome of the
administrative proceedings. Thus, the district court “granting a present
determination of the issue[]”—here, whether Patrick’s parents were
prevailing parties in the administrative proceedings—would “have some
effect in the real world” independent of the now-moot dispute over whether
the 2016 IEP had denied Patrick a FAPE. Miller, 565 F.3d at 1250(quoting Kan. Jud. Rev. v. Stout, 562 F.3d 1240, 1247 (10th Cir. 2009)); cf.
Garcia, 520 F.3d at 1124 (holding requests for “backward-looking relief”
were not moot even though a student was ineligible for prospective IDEA
relief).
The district court incorrectly concluded that the attorney’s fee claim
would have required it to interpret the Parents’ moot substantive claims. In
making this ruling, it cited our decision in Moseley v. Bd. of Educ. of
Albuquerque Pub. Schs., 483 F.3d 689 (10th Cir. 2007), and the Seventh
Circuit’s decision in Nathan R. See Patrick G., 2020 WL 5877604, at *7.
Moseley does not control here, however, and Nathan R. actually supports
the opposite result. True, in Moseley, we stated that, because the
appellant’s “underlying substantive claims [were] moot, [he] c[ould not]
recover attorney’s fees and costs.” Moseley, 483 F.3d at 694; cf. Steven
R.F., 924 F.3d at 1316 n.7 (reasoning that, “[b]ecause the case is moot, the
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court does not have jurisdiction to make a determination on the merits, and
[the parent] cannot be a ‘prevailing party’ under the IDEA”). But while the
appellants requested fees in the district court, see Moseley, 483 F.3d at 692,
they failed to argue that the attorney’s fee issue could survive apart from
their substantive IDEA claims, see Aplts.’ Supp. Br., Moseley, No. 06-2157
(10th Cir. filed Feb. 27, 2007); cf. Belnap v. Iasis Healthcare, 844 F.3d
1272, 1288 (10th Cir. 2017) (reviewing the briefing in a prior Tenth Circuit
case to “confirm[] that the parties never challenged” a particular issue).
Moseley’s single-sentence comment on the mootness of the
appellants’ attorney’s fee claim pertains to a “legal proposition not
necessarily involved nor essential to determination of the case in hand”;
thus, it is dicta, and it is not controlling here, in a circumstance where the
Parents have asserted that their attorney’s fee claim independently survives.
Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir. 2014) (quoting
United States v. Villarreal-Ortiz, 553 F.3d 1326, 1328 n.3 (10th Cir.
2009)); see id. (“[A] panel of this court is bound by a holding of a prior
panel of this court but is not bound by a prior panel’s dicta.” (alteration in
original) (quoting Bates v. Dep’t of Corr., 81 F.3d 1008, 1011 (10th Cir.
1996))).
In contrast, Nathan R.—cited by both the district court and Moseley,
see 483 F.3d at 694—makes clear that an attorney’s fee claim is not moot
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when predicated on the (allegedly) favorable merits relief a claimant
obtained from an administrative decision. In Nathan R., the
parents-appellants obtained favorable rulings from an administrative
hearing officer, but the district court partially reversed this ruling and
ultimately denied their request for attorney’s fees, concluding the school
district had prevailing-party status and not the appellants. See Nathan R.,
199 F.3d at 379–80. On appeal, the Seventh Circuit vacated the district
court judgment, holding the substantive claims at issue were moot because
the appellants’ child had graduated. See id. at 381. It also observed that,
“[b]ecause [it] would need to consider the merits to determine whether the
[appellants] [were] prevailing parties,” it could not “decide whether the[y]
. . . would be entitled to attorneys’ fees from the proceedings in the district
court.” Id. (emphasis added).
The Nathan R. court, however, acknowledged that it “still c[ould]
decide whether the [appellants’] claim for attorneys’ fees from the
invocation of the stay-put placement [was] valid because that claim [was]
related solely to the administrative proceedings.” Id. (emphasis added).
Recognizing that prevailing parties “may file . . . independent suit[s] in the
district court to recover attorneys’ fees from an IDEA administrative
proceeding,” the court noted that the appellants’ “claim for attorneys’ fees
stem[med] solely from the imposition of the stay-put placement, which
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[was] part of the administrative hearing.” Id. at 381–82 (emphasis added);
cf. id. at 382 (“We may consider only [the appellants’] claim for attorneys’
fees stemming from the imposition of the stay-put placement because any
other decision would go to the merits of the action which are now moot.”
(emphasis added)). Thus, the appellants’ fee claim, predicated on the
administrative proceedings, was “sufficient to allow th[e] court to decide
whether they [were] prevailing parties and entitled to attorneys’ fees.” Id.
Nathan R.’s persuasive logic is supported by additional caselaw from
our sister circuits. For instance, in Lauren C. ex rel. Tracey K. v.
Lewisville Independent School District, the Fifth Circuit held a district
court lacked jurisdiction to rule on an appellant’s substantive IDEA claims,
which “became moot when [the student] aged out of eligibility for special
education services.” 904 F.3d 363, 372 (5th Cir. 2018). However, the
court “agree[d] with [the student] that whether she [was] entitled to
attorneys’ fees as a prevailing party [was] a question independent of
whether” her underlying, substantive IDEA claims were moot. Id. at 373(emphasis added). Noting that “[t]he attorneys’ fees question turn[ed] . . .
on a wholly independent consideration: whether [the] plaintiff [was] a
‘prevailing party,’” the court “reject[ed] [the school district’s] argument
that the mootness of the underlying merits automatically defeat[ed] any
entitlement by [the student] to fees” because—relying on Nathan R.—the
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court “could decide a fee issue in an otherwise moot IDEA case [where] the
fee claim was ‘related solely to the administrative proceedings.’” Id. (first
quoting Murphy v. Fort Worth Indep. Sch. Dist., 334 F.3d 470, 471 (5th
Cir. 2003); and then quoting Nathan R., 199 F.3d at 381).
The First Circuit reached the same conclusion in a somewhat
different context. In J.S. v. Westerly School District, the circuit was faced
with a substantive IDEA suit rendered moot by the student’s departure from
the purportedly offending school district. See 910 F.3d 4, 9 (1st Cir. 2018).
On appeal, among other things, the school district challenged the district
court’s award of attorney’s fees to the student, contending it was “based
upon an erroneous interpretation of the IDEA.” Id. at 10. The circuit
“note[d] at the outset that, although the substantive question underlying the
fee award [was] moot . . . , the fee-shifting issue [was] not” because the
student had “clearly succeeded in obtaining the relief sought . . . [before]
an intervening event rendered the case moot on appeal.” Id. at 9 (quoting
Diffenderfer v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009)). Because
the “predicate issue [was] moot,” however, the court could not “recoup
jurisdiction over the merits by ruling on a question about attorneys’ fees.”
Id. at 10. Consequently, “in asking whether the [student and her parents]
prevailed,” the court “look[ed] ‘only to what relief the district court granted
and not to whether the case was rightly decided.’” Id. (quoting
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Diffenderfer, 587 F.3d at 453). “In other words, [the court was required to]
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 [student and her
parents] ‘prevailing parties.’” Id.; see also E.D. ex rel. Doe v. Newburyport
Pub. Sch., 654 F.3d 140, 143–44 (1st Cir. 2011) (“The issue here, of
course, is not the merits of the [parents’] claim, . . . but the effect of their
leaving [the school district] after the [favorable] action by the [state]
appeals board. While their move would obviously affect any claim the[y]
. . . might make for prospective relief from any failure to provide an IEP
over[] the period after their removal, it did not moot the claim for fees
incurred in seeking the administrative order issued before the move, based
on a finding that [the district] had failed to do its part to produce an
adequate IEP. . . . [T]hat eligibility for a fee award is not lost even when
subsequent developments render a claim moot overall. . . . If, therefore, the
administrative order did make the [parents] ‘prevailing parties’ before they
moved, they were still prevailing when they left town.” (citations omitted)
(emphasis added)). 11
11
The unpublished decision in R. M-G also accords with that of our
sister circuits. See R. M-G v. Bd. of Educ. for the Las Vegas City Schs., 645 F.
App’x 672, 677 (10th Cir. 2016) (unpublished) (noting, where the district court
awarded fees based on the parent’s fee award in the administrative proceedings,
that “[n]othing in the IDEA requires the presence of a substantive challenge to the
(continued...)
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Here, the Parents anchor their fee claim in the administrative
proceedings, not the proceedings in the district court. The outcome of
those administrative proceedings—i.e., the ALJ’s decision—remains in
force, and it was not vacated or vitiated by the district court’s dismissal on
mootness grounds. Thus, under the logic of our mootness precedent—along
with Nathan R. and other cases from our sister circuits—the Parents have a
still-viable claim for fees, irrespective of the mootness of their underlying,
substantive claims. Cf. Steven R.F., 924 F.3d at 1312–13, 1316 (holding an
attorney’s fee claim to be moot where the parents obtained a favorable
ruling in the district court after they failed to obtain relief from the final
administrative hearing officer).
To be sure, the Parents may only recover fees if they qualify as
“prevailing parties” under the IDEA—and, even then, a fee award falls
within the district court’s discretion. See 20 U.S.C. § 1415(i)(3)(B).
Accordingly, we remand the attorney’s fee claim in its entirety, including
the predicate question of whether the Parents are prevailing parties, to
allow the district court to address this question in the first instance.
11
(...continued)
administrative proceedings to qualify for an award of fees” and that such a
reading of the statute “would mean that a parent who prevails on every single one
of her administrative claims would nevertheless have to mount some district court
challenge to the administrative proceeding just to qualify for a fee award”).
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2
Similarly, the Parents’ reimbursement claims stemming from the due
process hearing are not moot. These reimbursement claims center on two
separate components of the administrative proceedings: the School
District’s agreement, shortly before the due process hearing, “to pay the
cost of Alpine from May 20, 2016 to the time of the due process hearing,”
Aplts.’ Opening Br. at 15; and the ALJ’s order, following the due process
hearing, that the School District also “provide reimbursement for the
private [OT and SLP] services provided” from December 2015 to the time
of the due process hearing, Aplts.’ App., Vol. III, at 728. The current
“live” dispute, however, is much narrower. The District does not challenge
its liability for these reimbursement payments or their amount; rather, it
merely disagrees with the Parents on whether it can issue the vast majority
of these reimbursement payments to TRICARE. Thus, the only dispute
between the parties regarding the Parents’ reimbursement claims—i.e., their
entitlement to compensation for the District’s past failure to pay Patrick’s
Alpine tuition or provide him with SLP and OT services—appears to be
whether the ALJ erred in ruling the District could designate TRICARE as
an alternate payee on all reimbursement payments, apart from those
payments compensating Patrick’s parents for the $35 monthly premiums to
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TRICARE over the relevant time period. 12
This discrete “alternate payee” issue relates solely to reimbursement
for past violations that remains due and owing. As a general matter, “a
claim seeking reimbursement for past education expenses is not moot even
if” the student’s substantive claims are otherwise moot. Garcia, 520 F.3d
at 1124 n.3; see T.S. v. Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1092 (10th
Cir. 2001) (noting the mootness rule “applies . . . where a student [has
graduated] . . . and where he is seeking only prospective—rather than
compensatory—relief”); see also Elizabeth B. ex rel. Donald B. v. El Paso
Cnty. Sch. Dist. 11, 841 F. App’x 40, 42 (10th Cir. 2020) (unpublished)
(noting that, “because the [student’s] complaint seeks actionable
reimbursement damages, [her] appeal is not moot”); cf. Ostby v. Manhattan
Sch. Dist. No. 114, 851 F.3d 677, 685–86 (7th Cir. 2017) (“[T]here is one
part of the underlying case that is not moot. . . . [T]he [parents] sought
12
Patrick’s parents argue on appeal that the District “has never
provided OT services nor paid the costs associated with the provision of those
private services by the parents.” Aplts.’ Opening Br. at 17; see also Aplts.’ Reply
Br. at 4 (again asserting that the “District has never . . . provided OT services as
required” by the ALJ decision). But the School District does not appear to
contest its responsibility to reimburse Patrick’s parents for these services. See
Aplee.’s Resp. Br. at 24 (asserting that “the District and the Parents agree to the
costs of the gap in services,” while disputing whether TRICARE should be
included as the alternate payee). The parties’ dispute thus boils down to whether
the District may issue the reimbursement check to TRICARE as an alternate
payee.
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reimbursement for private evaluations of [their son]. The district court
awarded [them] $3126.10 for that claim and the District did not challenge
that ruling on appeal. That part of the district court’s judgment is not moot
and remains intact on remand.”).
Here, the Parents challenge an isolated facet of their reimbursement
claims for past IDEA violations. And, while the District does not contest
its need to provide reimbursement in any meaningful respect on appeal, it
continues to disagree with Patrick’s parents on whether it should issue the
check to TRICARE. See Aplee.’s Resp. Br. at 24 (labeling the Parents’
claims as “baseless”). This issue, then, is not moot, and the district court
could have decided it without, in effect, rendering an advisory opinion. We
thus reverse the district court’s mootness determination on this issue as
well, remanding for the district court to determine, in the first instance,
whether the School District improperly chose to address its reimbursement
payments to TRICARE as an alternate payee.
3
Finally, Patrick’s parents argue that their stay-put claim continues to
present a live controversy. The IDEA’s “stay-put” provision provides that
“during the pendency of any proceedings conducted pursuant to this section
. . . the child shall remain in the then-current educational placement of the
child . . . until all such proceedings have been completed.” 20 U.S.C.
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§ 1415(j); see also 34 C.F.R. § 300.518(a). The Parents contend the School
District violated § 1415(j) when it ceased paying Patrick’s tuition in
November 2019. See Aplts.’ Opening Br. at 17–20. They further argue
“[t]he controversy regarding Patrick G.’s educational placement—Alpine
versus private school (and all that entails)—remains live and not moot.” Id.
at 19. Thus, the “subsequent motion to enforce this statutory and
mandatory injunction regarding Patrick’s educational placement pending
completion of these proceedings was, likewise, a live controversy and was
not moot,” and the court erred in holding otherwise. Id.
But the Parents’ assertion—that their motion for injunctive relief was
not moot when they filed it—fails to address whether any request for
injunctive relief would now be moot following our dismissal of the
substantive IDEA claims. “Generally, a claim for [a] prospective
injunction becomes moot once the event to be enjoined has come and
gone.” Prison Legal News, 944 F.3d at 880 (quoting Citizen Ctr. v.
Gessler, 770 F.3d 900, 907 (10th Cir. 2014)); see Rezaq v. Nalley, 677 F.3d
1001, 1008 (10th Cir. 2012) (“Past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive relief.”
(quoting O’Shea v. Littleton, 414 U.S. 488, 495 (1974))).
With respect to their stay-put claim, the Parents argue they are
entitled to injunctive relief that will allow Patrick “to remain in his then
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current educational placement,” see Aplts.’ Opening Br. at 8, so long as the
“controversy regarding Patrick G.’s educational placement”—that is,
“Alpine versus private school (and all that entails)—remains live and not
moot,” id. at 19 (emphasis added); see also id. at 8 (describing the “original
‘controversy’” as “the question of the appropriate educational placement
for Patrick” (emphasis added)). Yet the only “controversy” upon which the
Parents have predicated their stay-put claim—the dispute over Patrick’s
placement—is now moot. In effect, then, our holding that Patrick’s
substantive IDEA claims are moot also moots his stay-put claim for
prospective injunctive relief. Any determination we render concerning the
availability of injunctive stay-put relief—which, as framed by Patrick’s
parents, should be imposed while the “controversy regarding Patrick G.’s
educational placement” was pending, id. at 19—will no longer have any
“effect ‘in the real world,’” Nathan M., 942 F.3d at 1046 (quoting Rio
Grande Silvery Minnow, 601 F.3d at 1110), because the “proceedings”
during which Patrick’s parents argue a “stay put” injunction should have
issued are over (i.e., moot). 13
13
Although Patrick seeks reimbursement for other matters, his stay-put
arguments appear to implicate only prospective relief. In particular, neither
before the district court nor on appeal has Patrick clearly expressed that his
stay-put claim includes a demand for reimbursement for the period from the
termination of the Alpine contract to the conclusion of district court or appellate
(continued...)
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In making this determination, we emphasize that our mootness
inquiry is limited to the stay-put theory advanced and relief requested by
Patrick G.’s parents before the district court and on appeal. See Moseley,
483 F.3d at 694 (declining to address a plaintiff’s arguments that “his
claims present a live controversy because the IDEA allows for
reimbursement and compensatory education services” when he “never
requested such relief” and failed to “articulate any equitable relief that
13
(...continued)
proceedings. See, e.g., Aplts.’ App., Vol. I, at 192 (seeking an injunction before
the district court “requir[ing] the School District to maintain Patrick’s placement
at Alpine Autism Center until the completion of these proceedings” without
discussing reimbursement); Aplts.’ Opening Brief at 19 (describing the stay-put
issue on appeal as involving a “motion to enforce this statutory and mandatory
injunction regarding Patrick’s educational placement pending completion of these
proceedings”). Whether such reimbursement would have been available is not a
question before us. See State v. U.S. Env’t Prot. Agency, 989 F.3d 874, 885 (10th
Cir. 2021) (explaining that we rely on the parties to present arguments and issues
to the Court).
The significant point for purposes of our jurisdictional analysis is this:
Patrick has not argued that his stay-put claim is not moot because it includes a
still-viable reimbursement component. Accordingly, whether his stay-put claim is
moot must be assessed solely based on its request for prospective relief during the
pendency of his challenges to the 2016 IEP. See Moseley, 483 F.3d at 693–94
(declining to address a potential argument that a plaintiff’s compensatory claims
would not have been moot when the plaintiff “never prayed for compensatory
damages” and “[t]he tenor of the entire complaint and proceedings in this action
[were] for injunctive relief”); cf. Joshua A. v. Rocklin Unified Sch. Dist., 559 F.3d
1036, 1040 (9th Cir. 2009) (considering a reimbursement remedy for a stay-put
violation where the proponent specifically advanced reimbursement as a separate
remedy). And, because we hold that the district court correctly determined the
challenges to the 2016 IEP are moot, we logically conclude that the court also did
not err in determining that the intertwined request for prospective, stay-put relief
is also moot.
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would present a live controversy”); cf. State v. U.S. Env’t Prot. Agency,
989 F.3d 874, 885 (10th Cir. 2021) (“The principle of party presentation is
a fundamental premise of our adversarial system. That means ‘we rely on
the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.’” (quoting United States v.
Sineneng-Smith, --- U.S. ----, 140 S. Ct. 1575, 1579 (2020))); cf. also
Greenlaw v. United States, 554 U.S. 237, 243 (2008) (“In our adversary
system, in both civil and criminal cases, in the first instance and on appeal,
we follow the principle of party presentation.”); Utah Poultry Producers
Co-op v. Union Pac. R.R. Co., 147 F.2d 975, 977 (10th Cir. 1945) (noting
that “it is not necessary for us to decide [an issue], because this is not the
issue as framed by the parties”).
Despite Patrick’s parents’ assertions that the district court erred by
denying their motion for injunctive relief, they make no meaningful
argument—supported by authority or even logic—for why this claim is
viable (i.e., not moot) following the dismissal of the underlying substantive
claims as moot. 14 And we have no binding authority that conclusively
14
There is some out-of-circuit authority that conceivably could have
provided support for the Parents’ cause. See M.R. v. Ridley Sch. Dist., 868 F.3d
218, 229–30 (3d Cir. 2017) (holding that the stay-put provision gives rise to a
separate “right to monetary reimbursement or, alternatively, the child’s right to
compensatory education, both of which are rights to backward-looking
(continued...)
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answers this jurisdictional question. At the end of the day, the Parents
must convince us that jurisdiction is present, and we will not make
arguments in this respect for them. See, e.g., Devon Energy Prod. Co., L.P.
v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1201 (10th Cir. 2012)
(“We ‘presume[ ] that a cause lies outside this limited jurisdiction [of
federal courts], and the burden of establishing the contrary rests upon the
party asserting jurisdiction.’” (first alteration in original) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))); see
also Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011)
(“Where an appellant fails to lead, we have no duty to follow. It is the
appellant’s burden, not ours, to conjure up possible theories to invoke our
legal authority to hear [appellant’s] appeal. Neither are we comfortable
guessing for ourselves, without [appellant’s] help, what the answer might
be to the complex question . . . .”). And, as to the stay-put claim, the
14
(...continued)
compensatory relief and require an independent merits determination”). But see
Ventura de Paulino v. N.Y.C. Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020)
(“The stay-put provision does not guarantee a child with a disability ‘the right to
remain in the exact same school with the exact same service providers while his
administrative and judicial proceedings are pending. Instead, it guarantees only
the same general level and type of services that the . . . child was receiving.’”
(omission in original) (quoting T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752
F.3d 145, 171 (2d Cir. 2014)). But the Parents have not cited this potentially
supportive authority—much less made meaningful arguments based on it.
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Parents have not offered us anything that supports a determination that
jurisdiction is present. Accordingly, we uphold the decision of the district
court as to their stay-put claim.
III
For these reasons, we AFFIRM in part the district court’s ruling that
the Parents’ substantive IDEA claims and their stay-put claim—advanced
under 28 U.S.C. § 1415(j)—are moot. But we REVERSE in part the
district court’s mootness ruling as to the Parents’ attorney’s fee and
reimbursement claims, and remand to the district court to address the merits
of these claims in the first instance.
63