United States v. 2007-12-27 | 06-55179 | LEVINA VSAN LUIS COASTAL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TATYANA LEVINA,
Plaintiff-Appellant, No. 06-55179
v. D.C. No.
 CV-05-06586-JFWSAN LUIS COASTAL UNIFIED SCHOOL
DISTRICT, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
October 18, 2007—Pasadena, California
Filed December 28, 2007
Before: Diarmuid F. O’Scannlain and Milan D. Smith, Jr.,
Circuit Judges, and Michael W. Mosman,* District Judge.
Opinion by Judge Mosman
*The Honorable Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
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COUNSEL
Marcy J.K. Tiffany, Wyner & Tiffany, Torrance, California,
for the plaintiff-appellant.
Peter A. Sansom, Lozano Smith, Vista, California, for the
defendant-appellee.
OPINION
MOSMAN, District Judge:
Defendant-Appellee San Luis Coastal Unified School Dis-
trict (“School District”) filed an administrative complaint
under the Individuals with Disabilities Education Act of 2004
(“IDEA”) against Plaintiff-Appellant Tatyana Levina when
she refused to consent to an Individualized Education Plan
(“IEP”) for her minor son. After the administrative Hearing
Officer dismissed the School District’s administrative com-
plaint without prejudice, Ms. Levina filed a complaint in dis-
trict court under 20 U.S.C. § 1415(i)(2)(A). Ms. Levina
appeals the district court’s grant of summary judgment in the
School District’s favor. We dismiss for lack of jurisdiction.
I. Background and Prior Proceedings
In 2005, the School District developed an IEP for Ms.
Levina’s minor, disabled son. She would not consent to the
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IEP, so the School District filed an administrative complaint.
At the School District’s request, a Hearing Officer dismissed
the complaint without prejudice on May 24, 2005.
On September 7, 2005, Ms. Levina filed a complaint in dis-
trict court, claiming the Hearing Officer “erred in failing to
dismiss the case with prejudice and in failing to identify [her]
as the prevailing party.” The School District moved to dismiss
the complaint for lack of standing and subject matter jurisdic-
tion. The district court reluctantly denied the motion to dis-
miss, stating that the question of jurisdiction was dependent
upon factual issues going to the merits. The parties filed
cross-motions for summary judgment, and the district court
granted the School District’s motion, concluding the Hearing
Officer properly dismissed the matter without prejudice.
II. Standard of Review and Jurisdiction
[1] “[S]tanding is an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citing Allen
v. Wright, 468 U.S. 737, 751 (1984)). If a party lacks stand-
ing, the court does not have jurisdiction as to that party. See
Bernhardt v. County of L.A., 279 F.3d 862, 868 (9th Cir.
2002) (citations omitted).1 A party’s standing is subject to de
novo review. Id. at 867.
III. Discussion
[2] The IDEA states: “Any party aggrieved by the findings
and decision made [in an impartial due process hearing] . . .
shall have the right to bring a civil action with respect to the
complaint presented pursuant to this section . . . .” 20 U.S.C.
§ 1415(i)(2)(A). Parents of a child with a disability may bring
1Although the parties have mentioned the concept of prudential standing
in passing, the parties have briefed and argued this issue as a question of
Article III standing.
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a civil action pursuant to this provision. Winkelman ex rel.
Winkelman v. Parma City Sch. Dist., 127 S. Ct. 1994, 2004
(2007). This court has not directly addressed whether a parent
who has not requested relief under the IDEA may qualify as
“aggrieved.” We hold that parties are “aggrieved” under the
IDEA only if: (1) they have suffered an injury in fact, see Ser-
rato v. Clark, 486 F.3d 560, 566 (9th Cir. 2007) (“To satisfy
Article III’s standing requirements, a plaintiff must show
[that] she has suffered an ‘injury in fact’ that is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical.”); and (2) they are denied relief they affirma-
tively requested, see Diatta v. Dist. of Columbia, 319 F. Supp.
2d 57, 63 (D.D.C. 2004) (“A party is considered ‘aggrieved’
under the Act where relief requested in satisfaction of the Act
is denied.” (citations omitted)).2
A. Injury in Fact
[3] Ms. Levina did not suffer an injury in fact because her
injuries are speculative. An injury in fact is an invasion of a
legally protected interest that is concrete and particularized,
and actual or imminent. See Serrato, 486 F.3d at 566. Ms.
Levina argues the School District could re-file its case, sub-
jecting her to future litigation. To date, the School District has
not re-filed its case, so any potential harm to Ms. Levina from
having to re-litigate in the future is speculative.3
[4] Ms. Levina also argues the Hearing Officer’s decision
2We note that one of our sister circuits has held that the IDEA “implic-
itly grant[s] standing . . . to the limits of Article III.” Family & Children’s
Ctr., Inc. v. Sch. City of Mishawaka, 13 F.3d 1052, 1061 (7th Cir. 1994).
However, Winkelman, 127 S. Ct. 1994, and Maroni v. Pemi-Baker
Regional School District, 346 F.3d 247, 252-53 (1st Cir. 2003), both stand
for the proposition that the IDEA may be read as imposing independent
statutory limitations as to standing.
3The School District will likely never re-file its case because, as indi-
cated during oral arguments, the parties have reached a settlement.
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deprived her of the opportunity to seek reasonable attorney fees.4
Indeed, because it is unlikely that the School District will ever
re-file its case against Ms. Levina, it appears that the sole pur-
pose of bringing this federal action was to secure fees for
Levina’s attorneys and not to secure any substantive relief
under the IDEA. But the Supreme Court has held that an
interest in attorney fees is not an injury in fact. Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“An
‘interest in attorney’s fees is . . . insufficient to create an Arti-
cle III case or controversy where none exists on the merits of
the underlying claim.’ ” (quoting Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 480 (1990))). Thus, Ms. Levina did not suffer
an injury in fact, because any harm to her is speculative and
an interest in attorney fees does not create an injury in fact.
B. Affirmatively Requested Relief
[5] Ms. Levina also is not “aggrieved” under the IDEA
because she did not affirmatively request relief. “A party is
. . . ‘aggrieved’ . . . where relief requested in satisfaction of
[the IDEA] is denied.” Diatta, 319 F. Supp. 2d at 63 (citations
omitted). The School District filed the request for an adminis-
trative hearing, and Ms. Levina did not file any claims against
the School District or otherwise affirmatively request relief.
Ms. Levina argues that a procedural ruling can render a party
aggrieved because it effectively denies relief the party could
have otherwise received. However, when the Hearing Officer
dismissed the matter without prejudice, it merely restored the
status quo. Therefore, in this case, Ms. Levina was not
aggrieved by the Hearing Officer’s decision.
IV. Conclusion
Because Ms. Levina did not suffer an injury in fact and did
4Under the IDEA, “the court, in its discretion, may award reasonable
attorneys’ fees as part of the costs . . . to a prevailing party who is the par-
ent of a child with a disability.” 20 U.S.C. § 1415(i)(3)(B).
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not affirmatively request relief, she is not an “aggrieved”
party under the IDEA and therefore lacked standing to bring
an action under 20 U.S.C. § 1415(i)(2)(A). Consequently, we
dismiss for lack of jurisdiction.5
DISMISSED.
5The School District’s request dated November 26, 2007, for sanctions
against Ms. Tiffany for improper filing of a Rule 28(j) letter is denied as
moot.
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