                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-15-2005

Solin v. Riverton Bor Bd Ed
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2689




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                                              NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                    No: 04-2689


           MICHAEL SOLIN, by and
            through his parents and
               attorneys-in-fact;
        BARRY SOLIN; PATRICIA SOLIN


                           v.


RIVERTON BOROUGH BOARD OF EDUCATION;
PALMYRA BOROUGH BOARD OF EDUCATION


                  Riverton Borough
                 Board of Education,

                                Appellant

        ______________________________

    Appeal from the United States District Court
           for the District of New Jersey
              (D.C. No. 04-cv-00147)
         District Judge: Joseph E. Irenas


     Submitted Under Third Circuit LAR 34.1(a)
                 on June 28, 2005

Before: ROTH, RENDELL and BARRY, Circuit Judges

         (Opinion filed:   August 15, 2005)
                                    _______________

                                        OPINION
                                    ________________



ROTH, Circuit Judge:

       B.S. on behalf of M.S. brought an action against the Palmyra Borough Board of

Education and the Riverton Borough Board of Education (the School Boards) seeking

relief under the Individuals with Disabilities Education Act (IDEA) in the form of

payment by the School Boards for the expenses associated with M.S.’s education at a

private school. State administrative review of M.S.’s claim by a state administrative law

judge (ALJ) awarded M.S. some of the relief he sought. Seeking further relief under the

IDEA, M.S. brought an action in federal district court. Although district court

proceedings have yet to conclude, the District Court awarded M.S. part of the relief

sought: the District Court ordered the School Boards to continue payments to M.S.’s

private school during the pendency of this litigation. This is the so-called “stay-put”

order. The School Boards have complied with the stay-put order, but the School Board of

Riverton has sought an interlocutory appeal in an effort to recoup funds already expended

in compliance with the District Court’s order. M.S. has since graduated. For the reasons

we explain below, the School Board’s appeal is dismissed for lack of appellate

jurisdiction.



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Factual Background and Procedural History

       As the facts are well known to the parties, we give only a brief description of the

facts and procedural posture of the case.

       M.S. attended the TLC school in Connecticut during 2002-2003. His placement

there was a decision of a “child study team.” Apparently, this assessment was an

individualized education program as set out in the IDEA. The School Boards sought to

have M.S. graduate in June 2003, but his parents (who initiated litigation) sought an

additional year for M.S. at TLC. M.S. was granted interim relief in a June 30, 2003, order

issued by the ALJ. Due process hearings were held and the ALJ issued a final order on

December 16, 2003. The ALJ’s final order awarded M.S. placement at TLC through the

fall 2003 semester, but thereafter M.S. could finish his last remaining course -- physics --

at public school, thereby terminating the School Boards’ financial obligation for

continuing costs at TLC. M.S. appealed the ALJ’s order by bringing a federal district

court action on January 14, 2004. The School Board of Riverton brought a counterclaim.

On May 10, 2004, the District Court issued a stay-put order, maintaining the then current

educational placement at TLC and assigning the costs of M.S.’s education at TLC

incurred during the pendency of the litigation to the School Boards. In prior briefing

before the District Court, the School Board of Riverton took the position that its financial

straits would justify the District Court in denying M.S. the stay-put order sought by M.S.

The District Court rejected this argument. Litigation on the merits of the claims and



                                             3
counterclaims continue even now before the District Court. Notwithstanding continuing

District Court proceedings, the School Board filed its notice of appeal on June 10, 2004,

seeking interlocutory relief with regard to the District Court’s stay-put order. M.S.

graduated in June 2004.

                          Standard of Review and Jurisdiction

       As we deny the School Board all relief for lack of appellate jurisdiction, we do not

review any of the findings or proceedings of the District Court. Our authority to

determine the extent of our own jurisdiction is plenary.

       The District Court had jurisdiction under 28 U.S.C. § 1331 and IDEA, 20 U.S.C.

§§ 1400 et seq. The School Board argues that (interlocutory) appellate jurisdiction exists

under the collateral order doctrine and cite this court’s holding in Susquenita School

District v. Raelee S., 96 F.3d 78, 81 n.4 (3d Cir. 1996) as support.

       We distinguish the facts of Susquenita from the case before us. In Susquenita, the

District Court, per the IDEA, ordered that Raelee S. be permitted to continue her

education in the private school she had been attending and ordered the school district to

make payments against prospective costs. See Susquenita, 96 F.3d at 81 & n.3.

Additionally, the District Court ordered the school district to reimburse Raelee S. for

costs already incurred during 1994-1995 term, which was ninth grade for Raelee S. The

District Court’s order was filed in 1995. Appeal was taken and we announced our

decision in 1996 – finding jurisdiction under the collateral order doctrine. Id. at 81 n.4.



                                              4
At that time, Raelee S. would have just started eleventh grade. In other words, both

Raelee S.’s suit on the merits (still before the District Court in 1996) and the continuing

obligation of the school district to make further or prospective payments under the order

from which the interlocutory appeal was taken remained live controversies. Had the

school district been denied interlocutory review until the District Court issued its final

order on the merits of the IDEA action, the school district’s ability to legally test the

validity of the stay-put order and to avoid the concomitant and continuing financial

obligations would have been impossible. Appellate review at the termination of all

district court proceedings might impair the school district’s ability to recoup some or all

of the funds it continued to expend in compliance with the stay-put order. Interlocutory

review had the potential of avoiding this result precisely because Raelee S. was still in

school.

       In the instant litigation, M.S. has already graduated. There is no live controversy

with regard to Riverton and Palmyra’s continuing financial obligations under the stay-put

order. M.S.’s claim for prospective relief is moot.

                                         Conclusion

       For the reasons stated above, the School Board’s appeal is dismissed for lack of

jurisdiction.




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