Doe v. Brookline School Committee, s. 83-1131

Decision Date06 December 1983
Docket Number83-1514,Nos. 83-1131,s. 83-1131
Parties15 Ed. Law Rep. 72 John DOE, et al., Plaintiffs, Appellees, v. BROOKLINE SCHOOL COMMITTEE, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Cathleen Cavell, Brookline, Mass., with whom David Lee Turner, Brookline, Mass., and Robert P. Snell, Rochester, N.Y., were on brief, for appellant.

H. Reed Witherby, Asst. Atty. Gen., Government Bureau, Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., was on brief, for the Mass. Dept. of Education, Boston, Mass.

Anne Vohl, Burlington, Mass., for John Doe, et al.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, * District Judge.

BOWNES, Circuit Judge.

This case arises under the Education for All Handicapped Children Act, 20 U.S.C. Secs. 1401 et seq., and presents three issues. First, who bears responsibility for funding the nonpublic educational placement of a disabled child during the pendency of placement review proceedings? Second, does Sec. 1415(e)(3) preempt a district court's equity powers and require absolute enforcement of a current placement pending review? Third, is reimbursement for tuition costs expended available to a prevailing party under Secs. 1415(e)(2) and (e)(3) of the Act? Before reaching these issues, we must explain why the case before us now is not moot.

I.

The Education for All Handicapped Children Act provides federal funds to assist state and local agencies in their efforts to educate handicapped or disabled children and conditions these funds upon a State's compliance with the Act's stated goals and procedures. In order to qualify for federal monies under the Act, a State must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. Sec. 1412(1).

The means by which this statutory mandate is "tailored to the unique needs of the handicapped child," Board of Education of Hendrick Hudson v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982), is the "individualized education program" (IEP). 20 U.S.C. Secs. 1401(19), 1414(a)(5). The IEP is formulated at a meeting of the child's parents or guardian, the teachers, the qualified representative of the local educational agency, and, where appropriate, the child. The document which emerges must specify, inter alia, instructional goals and objectives, any special services to be provided to the child, and criteria for progress evaluation. See Sec. 1401(19). The Act further requires at least an annual review of each child's IEP and authorizes revisions where appropriate. Sec. 1414(a)(5). See also Sec. 1413(a)(11).

Plaintiff child has severe specific learning disabilities, a handicap encompassed by the Act. He and his parents live in the Brookline, Massachusetts school district. In September 1979 the parents rejected the IEP proposed by the Brookline School Committee and enrolled the child in the Carroll School, a private school which specializes in the education of children with learning disabilities. In conformance with the administrative remedies created by the Act, Sec. 1415, the parents appealed the proposed IEP to the Bureau of Special Education Appeals (BSEA) of the Massachusetts Department of Education. On February 8, 1980, BSEA ruled that the plan proposed by Brookline was "inadequate and inappropriate" and "that the Carroll School is the least restrictive, adequate and appropriate educational setting." The BSEA also ruled that Brookline was responsible for the financial costs of the child's education at the Carroll School starting in September of 1979.

The child completed the 1979-80 school year at Carroll. On June 3, 1980, Brookline reviewed the situation and determined that the child should, pursuant to the IEP, continue his education at the Carroll School for the 1980-81 school year. Almost one year later, on May 12, 1981, another review was held by Brookline. This resulted in an IEP calling for the immediate placement of the child in a public school special education program, a proposal which was rejected by the parents. The child started the 1981-82 school year at Carroll and Brookline continued to pay the costs.

In November 1981 Brookline requested a review by the BSEA of the IEP that recommended public school placement. After hearings in February, the BSEA ruled on April 21, 1982, that the child should be placed in the public school program as called for in the latest IEP. On May 27, 1982, the parents brought a complaint in the district court pursuant to 20 U.S.C. Sec. 1415(e)(2). The pertinent parts of the complaint ask that the court decide the appropriate IEP for "the present and prospectively" and that Brookline be ordered to pay for the child's education at the Carroll School pending final decision of the case.

Brookline paid the tuition at the Carroll School for the year 1981-82, but refused to pay for the 1982-83 year. According to an affidavit filed by the father, he was not notified until after his son's matriculation at the Carroll School for the 1982 fall term that Brookline would not continue to pay the tuition.

Plaintiffs filed a motion on September 29, 1982, asking that Brookline be ordered to continue paying for the child's education at the Carroll School until the merits of the IEP had been finally decided. The motion was styled, "Motion For Temporary Relief, Pendente Lite "; it was not a motion for a preliminary injunction. Plaintiffs argued that 20 U.S.C. Sec. 1415(e)(3) mandated such an order and that a preliminary injunction was not required. 1 The district court treated the motion as one for summary judgment and, after a hearing, ordered "that defendant Brookline School Committee fund the cost of plaintiff's education at the Carroll School for the entire 1982-1983 school year according to the terms of the 1980-81 IEP and thereafter, until completion of all review proceedings specified in 20 U.S.C. Sec. 1415."

The order directing Brookline to fund the child's private education issued on January 20, 1983. On January 26 the parents removed the child from the Carroll School and placed him in another private school at their own expense. The case was officially closed in the office of the district court clerk. Brookline filed a notice of appeal on February 17, 1983. After learning that the case was shown as closed in the district court records, Brookline moved to reopen on March 30, 1983. Plaintiffs opposed the motion to reopen stating, inter alia, that because Brookline had not paid the tuition to the Carroll School as ordered on January 20, the parents could not assume the risk of payment and the child, therefore, had been placed at their own expense in a less expensive private school. Plaintiffs also moved on April 4, 1983, that the court enforce its January 20 order and require Brookline to pay the Carroll School the child's past due tuition for the period from September 1, 1982 through January 1983.

On May 23, 1983, the court denied Brookline's motion to reopen and granted plaintiffs' motion for enforcement of its January 20 order stating, "The Court's order entered 1/20/83 was not stayed pending appeal." Brookline then moved on May 27, pursuant to Federal Rule of Civil Procedure 60(b)(6), for relief from the court's denial of its motion to reopen. This motion raised explicitly for the first time the question whether the parents or Brookline should bear the financial responsibility for the child's 1982 fall tuition at the Carroll School. On June 1, 1983, Brookline paid the tuition due the Carroll School ($3,837.35) and on June 21 filed a notice of appeal from the denial of the Rule 60(b)(6) motion. That appeal was stayed upon motion of all parties pending our decision in this case.

II.

"[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969); United States v. Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 1208, 63 L.Ed.2d 479 (1980). "The usual rule in federal cases is that an actual controversy must exist at all stages of appellate or certiorari review, and not simply at the date the action is initiated." Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973) (citations omitted).

We must look through the labels used in this case and its muddled procedural history to determine what is before us. The complaint raised two issues: the appropriateness of the IEP, and interim relief pending that determination. The court's order granted the interim relief sought. Brookline took a timely appeal from the order. It seems apparent that the case was mistakenly closed in the district court clerk's office, a mistake which should have been corrected. This would have made unnecessary both the motion to reopen and the separate appeal from the court's refusal to do so.

Brookline's payment in June of the past due tuition did not moot the issue of who ultimately would be liable for the tuition; all Brookline did was obey an order of the court. Its motion to reopen raised precisely the question of tuition reimbursement. The plaintiff parents were aware that they might be held liable for the tuition at the Carroll School for the 1982-83 year. Indeed, this was given as the reason for placing the child in a less expensive private school.

Cutting through the procedural snarl, it is clear that we are faced with an appeal from an order of the district court, the resolution of which will result in one of the parties being out-of-pocket in the amount of the fall tuition--$3,837.53. There is, therefore, an actual controversy at the appellate stage of the case.

A recent case from the Fifth Circuit dealt with a mootness claim in a similar situation. In Stacey G. v. Pasadena Independent School District, 695 F.2d 949 (5th Cir.1983), the district court...

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