10-1251 E.D., a minor, by v. Newburyport Public Schools

United States Court of Appeals
For the First Circuit
Nos. 10-1241, 10-1251
E.D., a minor, by and through his next Friend
and Parents Suzanne Doe and Robert Doe;
SUZANNE DOE; ROBERT DOE,
Plaintiffs, Appellants,
v.
NEWBURYPORT PUBLIC SCHOOLS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William J. Young, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.
Michael J. Tuteur, with whom Laura E. Gibbs, Michael
Thompson, and Foley & Lardner LLP were on brief, for appellants.
Doris R. MacKenzie Ehrens, with whom Murphy, Hesse, Toomey &
Lehane, LLP was on brief, for appellee.
August 19, 2011
The Hon. David H. Souter, Associate Justice (Ret.) of the *
Supreme Court of the United States, sitting by designation.

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SOUTER, Associate Justice. This is an appeal by a boy,
E.D., and his parents, Suzanne and Robert Doe, from orders of the
district court in favor of the defendant, Newburyport Public
Schools: summary judgement in no. 10-1241 and dismissal in no. 10-
1251. In each case the plaintiffs made claims under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§
1400-1482, which requires a responsible education authority to
provide an Individualized Education Plan (IEP) for the benefit of
any child with a disability as defined by the Act, 20 U.S.C.
§ 1401(3), to function as the blueprint for the required free,
appropriate public education, 20 U.S.C. § 1401(9). In each case,
the court’s order was identical, save for the penultimate lines
speaking, respectively, of dismissal and summary judgment. The
court recited as a factual predicate a summary of the Does’ claims
(stated in the pleadings, that is, as is implied by the dismissal
treatment of the reimbursement claim).
The dismissal order disposed of the Does’ claim for 1
reimbursement of tuition in a private Connecticut school in which
they enrolled their son. They say that they became obligated to
make tuition payments due in advance while they were residents of
Newburyport, Massachusetts, owing to Newburyport’s failure to
Newburyport argues that the order is properly understood as 1
granting summary judgment. The judge, however, called it
dismissal, and in any event, the distinction is irrelevant in
dealing with the issue before us, as we explain further on.
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provide an IEP in a timely way in anticipation of the 2009-10
school year. When Newburyport refused to pay, the Does brought
action under 20 U.S.C. § 1412(a)(10)(C)(ii).
The summary judgment for Newburyport responded to the
Does’ claim for costs including counsel fees under 20 U.S.C. § 1415
(i)(3)(B) as prevailing parties at a hearing before the
Massachusetts Bureau of Special Education Appeals. The appeals
board found a school selected by Newburyport in a proposed IEP to
be inappropriate but also ordered consideration of other nearby
public schools in place of the Connecticut private school proposed
by the Does, where they ultimately enrolled E.D. on their own.
At the start of the controversy between the parties, the
Does were undisputedly resident property owners of Newburyport.
For the 2008-09 school year they enrolled the boy in a school in
Stamford, Connecticut. To be with him, his mother rented an
apartment in Connecticut and on weekends returned to a Newburyport
apartment where his father was living. As the start of school drew
near in the fall of 2009, and the disagreement about an IEP and
appropriate school placement persisted, the Does’ income was
insufficient to support two residences, so they gave up the
Newburyport property and moved to Connecticut to be near the school
in Greenwich where they had enrolled the boy in anticipation of
that school year.
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Although the hearing before the state Special Education
Appeals board, and the dates on which they were obliged to make the
advanced tuition payments, all predated their move from
Newburyport, the district court regarded the subsequent change of
residence as dispositive: “As the Does no longer reside in
Newburyport, the Newburyport Public Schools are under no obligation
to provide any educational or special educational facilities for
Elliott Doe.” The court cited a Massachusetts statute and two
cases decided by the state board.
The Does understand the reasoning to be that the change
of residence rendered each claim moot, and that is a fair
characterization. On this de novo review of the purely legal
issue, however, we think that the move to Connecticut did not moot
the claims, though we express no opinion on the merits of either
one (merits issues to which Newburyport devotes a substantial part
of its brief).
So far as Newburyport defends the trial court’s mootness
ground for dismissing the reimbursement claim, its brief states the
nub of its argument succinctly:
Critical to the outcome in this case is the
fact that it involved only prospective relief,
the provision of FAPE [free appropriate public
education] for the next school year.
Newburyport could not deny Elliot FAPE for a
school year which had not yet begun and past
denial of FAPE was never at issue. There was
no procedural violation because Newburyport had
no obligation to draft an IEP for a non-
resident and its position on the residency
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issue was reasonable and amply supported by
BSEA case law. Moreover, even if Newburyport
failed to draft an IEP or offer an appropriate
placement in a timely manner, procedural
violations warrant a remedy only if they result
in a denial of FAPE. See e.g. Roland M. v.
Concord Public Schools, 910 F.2d 983, 994, (1st
Cir. 1009) [sic], Murphy v. Timberlane Regional
School District, 22 F.3d 1191 (1st Cir. 1994).
This mischaracterizes both the Does’ claim and the authority cited.
The reimbursement request is brought under 20 U.S.C.
§ 1412 (a)(10)(C)(ii):
If the parents of a child with a disability,
who previously received special education and
related services under the authority of a
public agency, enroll the child in a private
elementary school or secondary school without
the consent of or referral by the public
agency, a court or a hearing officer may
require the agency to reimburse the parents for
the cost of that enrollment if the court or
hearing officer finds that the agency had not
made a free appropriate public education
available to the child in a timely manner prior
to that enrollment.
The claim is that Newburyport did not make a free, appropriate
education available to E.D. in a timely manner, as a consequence of
which the Does had to take some action to ensure that their boy
would have an appropriate place to go when the school year began.
They say that the private Connecticut enrollment was suitable, that
their unilateral action enrolling E.D. there was reasonable, and
that the advance payments were due while they were still residents
of Newburyport. The fact that the Does later moved owing to
financial straits as Newburyport denied reimbursement and the
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proceedings dragged on does not on its face moot these claims.
They are addressed to the reviewing court’s discretionary equitable
power to award compensation for obligations said to have been
reasonably incurred before the move.
Newburyport’s closest pass at this reimbursement claim
comes in its fall-back assertion that even if it failed to provide
an IEP or school placement “in a timely manner,” these were only
procedural violations of no consequence unless “they result in a
denial of FAPE.” But this boils down to saying that any obligation
Newburyport may have incurred by failing to meet its statutory
obligations in a timely way in the past is erased by the Does’ move
that eliminates obligations it would otherwise have had going
forward. It is enough to say here that this demotion of the
timeliness requirement is not supported by the authority
Newburyport cites. The opinion in Roland M. v. Concord Pub. Sch.,
910 F.2d 983 (1st Cir. 1990), states only that “[b]efore an IEP is
set aside there must be some rational basis to believe that
procedural inadequacies compromised the pupil’s right to an
appropriate education, seriously hampered the parents’ opportunity
to participate in the formulation process, or caused a deprivation
of educational benefits.” Id. at 994. The Does’ claim is fairly
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read as saying that a procedural inadequacy, untimeliness, did
compromise their son’s right to the guaranteed education.2
As to the claim for attorneys fees, the Does argue that
they are entitled to reimbursement under the provision of the IDEA
for a discretionary award of fees to a “prevailing party,” 20
U.S.C. § 1415 (i)(3)(B), which they claim to be by virtue of the
determination of the state appeals board in August 2009 that the
school selected by Newburyport in the IEP it then proposed was
unsuitable. The issue here, of course, is not the merits of the
Does’ claim, which Newburyport’s brief addresses, but the effect of
their leaving Newburyport after the action by the appeals board.
While their move would obviously affect any claim the Does might
make for prospective relief from any failure to provide an IEP
overing 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 Newburyport had failed to do its
part to produce an adequate IEP. While we express no opinion on
the soundness of the prevailing party claim, which the district
court did not reach, the district court summary judgment appears to
The second case Newburyport cites, Murphy v. Timberlane Reg’l 2
Sch. Dist., 22 F.3d 1186 (1st Cir. 1994), is primarily about laches
or limitation periods for claims against an education authority.
As to IEP adequacy, it holds that an administrative delay that
deprived a disabled student of free appropriate public education
for two years is a ground for liability under the IDEA. Id. at
1196. It makes no suggestion that less egregious delays could not
also give rise to liability.
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rest on a legal theory at odds with this court’s prior holding
under a comparable prevailing party statute, 42 U.S.C. § 1988 (b),
that eligibility for a fee award is not lost even when subsequent
developments render a claim moot overall, Diffenderfer v. Gomez-
Colon, 587 F.3d 445, 454-55 (1st Cir. 2009). That case cited and
quoted from United States v. Ford, 650 F.2d 1141, 1144 (9th Cir.
1981): “[T]he question of attorney’s fees is ancillary to the
underlying action and survives independently under the Court’s
equitable jurisdiction,” Diffenderfer, 587 F.3d at 452 (alteration
in original). Thus, “in the mootness context, a ‘prevailing party’
is a party who managed to obtain a favorable, material alteration
in the legal relationship between the parties prior to the
intervening act of mootness.” Id. at 453. If, therefore, the
administrative order did make the Does “prevailing parties” before
they moved, they were still prevailing when they left town.
The judgment is vacated in each case, which is remanded
for further proceedings consistent with this opinion. Costs are
taxed against Newburyport Public Schools.
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