J.H. Ex Rel. Neal v. Riverside County Office of Education ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J.H., a minor, by and through his Guardian No. 15-56594
Ad Litem, Leticia Neal,
Plaintiff-Appellee, D.C. No.
5:14-cv-00804-MWF-PLA
v.
RIVERSIDE COUNTY OFFICE OF MEMORANDUM*
EDUCATION, A Local Educational
Agency,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted May 12, 2017
Pasadena, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and DONATO,** District
Judge.
Riverside County Office of Education (“RCOE”) challenges a ruling by a
California administrative law judge (“ALJ”) that required RCOE to provide speech
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
and language services to J.H. and ordered RCOE to petition to intervene in a state
juvenile court proceeding to identify a locked residential treatment center
placement for J.H.
RCOE has fully satisfied the terms of the ALJ’s order relevant to this appeal;
there is no further action that RCOE is required to take. Indeed, the state juvenile
court denied RCOE’s motion to intervene, J.H. was never placed in a residential
treatment center, direct appeals from J.H.’s state court juvenile proceedings have
since concluded, and the record does not indicate that there are any pending
collateral attacks on those proceedings. The only relief the ALJ ordered that
RCOE challenged in its briefs as inappropriate was the order requiring RCOE to
petition to intervene in a state juvenile court proceeding and to identify a locked
residential treatment center placement for J.H.1
“As a prerequisite to our exercise of jurisdiction, we must . . . satisfy
ourselves that this case is not moot.” Biodiversity Legal Found. v. Badgley, 309
F.3d 1166, 1173 (9th Cir. 2002) (citing Cole v. Oroville Union High Sch. Dist., 228
F.3d 1092, 1098 (9th Cir. 2000)). Even if neither party contends that the case is
moot, “we have an independent duty to consider sua sponte whether [it is].”
Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004) (citing Dittman v.
1
We consider any arguments not “specifically and distinctly” raised in the opening
brief to be waived. Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994).
2
California, 191 F.3d 1020, 1025 (9th Cir. 1999)). “Where the activities sought to
be enjoined already have occurred, and the appellate courts cannot undo what has
already been done, the action is moot, and must be dismissed.” Foster v. Carson,
347 F.3d 742, 746 (9th Cir. 2003) (quoting Bernhardt v. County of Los Angeles,
279 F.3d 862, 871 (9th Cir. 2002)); see also EEOC v. Fed. Express Corp., 558
F.3d 842, 846-47 (9th Cir. 2009) (“The test for mootness of an appeal is whether
the appellate court can give the appellant any effective relief in the event that it
decides the matter on the merits in his favor. If it can grant such relief, the matter
is not moot.” (quoting In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005))).
Here, “declaring the [ALJ’s order] unlawful would serve no purpose,” Ctr.
for Biological Diversity v. Lohn, 511 F.3d 960, 964 (9th Cir. 2007), because such a
declaration would not affect RCOE’s duties or actions in this case. We “cannot
undo what has already been done,” and everything RCOE properly challenges in
this appeal has already been done. Foster, 347 F.3d at 746 (quoting Bernhardt,
279 F.3d at 871). The appeal is therefore moot and must be dismissed.2
DISMISSED.
2
Accordingly, we deny as moot RCOE’s motion for judicial notice.
3