Mount Abraham v. Bouchey

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-01348
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Mount Abraham Unified School District Board of Directors v. Heather Bouchey

Opinion and Order on the Secretary’s Motion to Dismiss

Following an administrative complaint filed by Parent, at the time a resident

within the Mount Abraham Unified School District, and an investigation, the Secretary

of Education ordered the Individual Education Program (IEP) team responsible for

Parent’s disabled Child to reconvene and, among other things, modify the IEP to raise

the number of 1:1 personal care hours provided to Child to ensure that Child would

receive a free and appropriate education (FAPE). At the reconvened meeting, Parent was

informed, in direct defiance of the Secretary’s order, that personal care hours would not

be increased. This prompted Parent to file a second administrative complaint, following

which the Secretary again ordered the IEP team to raise Child’s personal care hours.

The Mount Abraham Unified School District Board of Directors (District) did not comply

with the second order. Instead, it filed this suit against the Secretary of Education in her

official capacity in an attempt at challenging the any requirement to raise Child’s

personal care hours.1

1 Though at the time suit initially commenced, Parent and Child’s interests were directly

at stake in this litigation, the District did not include them as parties needed for the just
adjudication of the case. See generally Vt. R. Civ. P. 19. Due to the outcome of this
decision, it is unnecessary to consider the Rule 19 issue further at this time.
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Shortly thereafter, Parent and Child moved out of state, at which time Parent and

the District were informed by the Agency of Education: “The District no longer has any

ability to oversee Student’s IEP or participate in its amendments. This change in

circumstances removes the District’s obligations relating to the other corrective actions

ordered. The files for these matters are now closed.” The District then supplemented its

complaint in this case to account for the changed circumstances but it did not modify the

relief sought.

In this action, the District asks the Court to: (a) declare that the Board of

Education rule that makes the Secretary’s decisions on administrative complaints

unappealable is invalid in that respect; (b) declare that the Secretary lacks authority to

award specific relief in response to an administrative complaint and is limited to

requesting that the IEP team reconsider its decision; and (c) order the Secretary to revise

her orders relating to Child accordingly. The District generally cites the Declaratory

Judgment Act, 12 V.S.A. §§ 4711–4725, and Vt. R. Civ. P. 75 in support of these claims.

In briefing, it clarifies the claim brought under Rule 75 procedure as seeking relief in the

nature certiorari as opposed to any of the other extraordinary writs.

The Secretary has filed a motion to dismiss. She argues: (a) the controversy is

moot now that Parent and Child have left the State; (b) the District failed to exhaust its

administrative remedies; and (c) relief in the nature of certiorari under Rule 75 is not

available in this case. As such, the motion challenges the Court’s subject matter

jurisdiction.

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I. Procedural Standard

As the Vermont Supreme Court has described, when considering a motion to

dismiss for lack of subject matter jurisdiction, “all uncontroverted factual allegations of

the complaint [are] accepted as true and construed in the light most favorable to the

nonmoving party. A court may consider evidence outside the pleadings.” Mullinnex v.

Menard, 2020 VT 33, ¶ 8, 212 Vt. 432, 438–39 (citations and internal quotations

omitted); see also Conley v. Crisafulli, 2010 VT 38, ¶ 3, 188 Vt. 11, 14 (court may accept

evidence from outside the record to resolve disputes as to jurisdiction).

II. Analysis

A. Regulatory Background

Briefly, the underlying rights and obligations at issue in this case are grounded in

the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400–1482, which

requires states, such as Vermont, that accept federal funding for the education of

disabled children to ensure that those children receive a FAPE. 20 U.S.C. § 1415(a). For

IDEA purposes, the District is the local educational agency or LEA. See 20 V.S.A. §

1401(19) (“The term [LEA] means a public board of education or other public authority

legally constituted within a State for either administrative control or direction of, or to

perform a service function for, public elementary schools or secondary schools in a city,

county, township, school district, or other political subdivision of a State, or for such

combination of school districts or counties as are recognized in a State as an

administrative agency for its public elementary schools or secondary schools.”). The

Agency of Education is the State educational agency or SEA. See 20 U.S.C. § 1401(32)

(“The term [SEA] means the State board of education or other agency or officer primarily

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responsible for the State supervision of public elementary schools and secondary schools,

or, if there is no such officer or agency, an officer or agency designated by the Governor or

by State law.”)

There are two principal mechanisms by which children and parents may seek

administrative redress regarding the provision of a FAPE: (1) an informal, speedy

“administrative complaint” procedure, see 34 C.F.R. §§ 300.151–300.153; and (2) an

altogether separate, formal “due process” procedure, see 34 C.F.R. §§ 300.500–300.520.

“[A]ny party” aggrieved by a determination made following a due process hearing “has

the right to bring a civil action with respect to the due process complaint notice

requesting a due process hearing.” 34 C.F.R. § 300.516.

The administrative complaint and due process complaint procedures are

implemented in Vermont regulations as Special Education Rules (Rules) § 2365.1.5

(administrative complaints) and § 2365.1.6 (due process complaint procedure). See Code

of Vt. Rules 22 000 006. The administrative complaint procedure is truly focused on

speed. When such a complaint is filed, it is both investigated and decided by the

Secretary within 60 days. None of the ordinary characteristics of due process are

available, and there is no right to a hearing. The Secretary’s decision on an

administrative complaint is not appealable. Rules § 2365.1.5(i).2 A parent or LEA

2 If the Secretary decides that the LEA is in violation of IDEA or State law, then “the

investigation report shall address how to remediate the violation as well as any resulting
denial of those services.” Rules § 2365.1.5(g); see also Dear Colleague Letter dated May
19, 2015 (U.S. Dep’t Educ. Off. Spec. Educ.), available at https://www.pattan.net
/getmedia/394e4a43-575b-4eab-86f4-07408b2b6e06/deaton.pdf (“Each SEA is responsible
for ensuring that all public agencies within its jurisdiction meet the requirements of the
IDEA and its implementing regulations, and this responsibility includes ensuring the
correction of any identified noncompliance, whether child-specific or systemic. In light of
the SEA’s general supervisory authority and responsibility under those provisions, SEAs
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dissatisfied with the Secretary’s decision, however, may file a due process complaint and

seek a hearing at which the matter will be considered by an impartial arbiter de novo

with robust due process safeguards in place. Id.; see also Rules § 2365.1.6.2(b) (“A parent

or an LEA may file a due process complaint on any matters regarding the identification,

evaluation, or placement of the child or the provision of a free appropriate public

education by sending a written Due Process Complaint Notice to the Secretary with a

copy sent to the other party.”).

In this case, Parent filed a first administrative complaint and then a second

administrative complaint when the District refused to implement fully the Secretary’s

fist order. No one ever filed a due process complaint.

B. Mootness

The Secretary argues that this case became moot when Parent and Child moved

out of State and the Agency notified the District that it was relieved of any obligations

vis-à-vis Parent and Student. “A case becomes moot—and this Court loses jurisdiction—

when there no longer is an actual controversy or the litigants no longer have a legally

cognizable interest in the outcome of the case.” Paige v. State, 2017 VT 54, ¶ 7, 205 Vt.

287, 291. This case arose out of the District’s refusal to comply with the Secretary’s

FAPE orders vis-à-vis Parent and Child. Because the District has no remaining FAPE

obligations to Parent and Child, and there is no alleged threat that the Agency of

have broad flexibility to determine the appropriate remedy or corrective action necessary
to resolve a State complaint in which the SEA has found that the public agency has failed
to provide appropriate services to children with disabilities.”). Were the Court to address
the issue, the District’s argument that the Secretary’s order is limited to requesting that
the IEP team merely reconsider its original decision, would have to overcome those
express provisions.
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Education intends to take any action against the District, this case would appear to be

moot as any relief ordered by this Court would have no impact on the District’s FAPE

obligations, whether to Parent and Child or the Agency.

The District offers only one reason to explain its position that this case is not moot.

It asserts in briefing that Parent could choose in the future to sue it for having failed to

provide Child with a FAPE. Although it does not explain its view as to how the

Secretary’s orders would function in such a lawsuit; presumably, were it to face such a

claim, it would prefer that those orders were declared invalid here first.

Though not denominated as such, the District appears to be arguing the collateral

consequences “exception” to the mootness doctrine. “This exception is based on the

premise that the Court should still consider a case—even if it no longer involves a live

controversy—if the action challenged by the appellant will continue to pose negative

consequences for the appellant if it is not addressed. It is a natural extension of the

concept that ‘[t]he central question of all mootness problems is ‘whether decision of a

once living dispute continues to be justified by a sufficient prospect that the decision will

have an impact on the parties.’’” Paige v. State, 2017 VT 54, ¶ 15, 205 Vt. 287, 294

(citation omitted). For this exception to apply, though, the anticipated collateral

consequence “cannot be purely speculative.” Handy v. Fiske, 2023 VT 46, ¶ 7, 218 Vt.

634, 635.

In briefing, the District asserts that Parent potentially decide to sue it at some poit

in the future. It describes no circumstances to the effect that such a lawsuit has been

threatened, is imminent, or is reasonably anticipated at all. It merely suggests that

because it never provided the 1:1 personal care hours ordered by the Secretary, it might

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be sued. That is pure speculation. It is wholly insufficient for the collateral

consequences exception to the mootness doctrine. The case is moot and is dismissed on

that basis.

C. Exhaustion of Administrative Remedies

Even if there were some way in which this case is not moot, the District has had

an administrative remedy—a due process complaint—available to it all along, and it has

never pursued it. As to that matter, the District appears to misperceive the Secretary’s

argument or the exhaustion doctrine itself. It argues at length that it had no obligation

to exhaust the administrative complaint procedure (employed by Parent twice) and never

explains why it had no obligation to file a due process complaint.

As the Vermont Supreme Court has explained: “[W]hen administrative remedies

are established by statute or regulation, a party must pursue, or ‘exhaust,’ all such

remedies before turning to the courts for relief. This long-settled rule of judicial

administration serves the dual purposes of protecting the authority of the administrative

agency and promoting judicial efficiency. Therefore, where an agency has jurisdiction to

decide an issue, a court will not interfere with the agency’s decision-making unless and

until all administrative remedies have been invoked.” Jordan v. State Agency of Transp.,

166 Vt. 509, 511–12 (1997) (citations omitted).

In response to the Secretary’s unappealable orders, the District had available to it

the due process complaint procedure. That procedure would have permitted the District

to test its theories before an impartial arbiter with robust due process protections. There

is no dispute that the procedure is available to LEAs. The District simply never pursued

it and chose to sue in court instead.

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“A party’s failure to exhaust administrative remedies permits a court to dismiss

the action for lack of subject matter jurisdiction.” Id. at 511. This is a second reason that

the Court lacks subject matter jurisdiction over this case.

Because the Court concludes that it lacks subject matter jurisdiction on those

grounds, it is unnecessary to address the additional question of whether the District’s

claim properly seeks certiorari review under Rule 75.3

Conclusion

For the foregoing reasons, the Secretary’s motion to dismiss is granted.

Electronically signed on Thursday, April 17, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

3 Review under a writ of certiorari allows limited judicial examination of decisions taken
by public officers that are quasi-judicial in nature. Our High Court has stated that it is
an “extraordinary remedy and one of limited scope and function.” Rhodes v. Town of
Woodstock, 132 Vt. 323, 323-25 (1974). To state a claim for certiorari review, the District
would need to establish that the intentionally informal, administrative complaint process
is, in fact, “quasi-judicial.” A “quasi-judicial action ‘is one in which all parties are as a
matter of right entitled to notice and to a hearing, with the opportunity afforded to
present evidence under judicial forms of procedure; and that no one deprived of such
rights is bound by the action taken.’ Goddard v. City of Albany, 684 S.E.2d 635, 638 (Ga.
2009); see also Frawley v. Police Com’r of Cambridge, 46 N.E.3d 504, 514 (Mass. 2016)
(‘[W]hen assessing whether a proceeding is quasi-judicial, we have looked to the form of
the proceeding … and the extent to which that proceeding resembles judicial action.’
(citation omitted)).” Mead Johnson & Co. v. State, No. 397-7-19 Wncv, 2019 WL
13061495, at *4 (Vt. Super. Ct. Oct. 28, 2019).
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