                                                                                        FILED
                                                                            United States Court of Appeals
                        UNITED STATES COURT OF APPEALS                              Tenth Circuit

                              FOR THE TENTH CIRCUIT                                 June 12, 2019
                          _________________________________
                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
 STEVEN R.F., a minor by and through his
 mother Carrie Fernandez,

        Plaintiff - Appellee,

 v.                                                              No. 18-1327
                                                        (D.C. No. 1:17-CV-00629-RBJ)
 HARRISON SCHOOL DISTRICT NO. 2,                                  (D. Colo.)
 and various of its elected and appointed
 representatives in their official capacities,

        Defendant - Appellant.
                       _________________________________

                                       ORDER
                          _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

        This matter is before the court to correct clerical errors related to the inclusion of

record citations in the Opinion issued on May 28, 2019. Specifically, the Clerk is directed

to substitute the version of the decision attached to this order for the version issued

previously. The revised version removes the record citations, and is otherwise exactly the

same.


                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk
                                                                                  FILED
                                                                      United States Court of Appeals
                                         PUBLISH                              Tenth Circuit

                       UNITED STATES COURT OF APPEALS                         May 28, 2019

                                                                          Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                            Clerk of Court
                         _________________________________

 STEVEN R.F., a minor by and through his
 mother Carrie Fernandez,

       Plaintiff - Appellee,

 v.                                                           No. 18-1327

 HARRISON SCHOOL DISTRICT NO. 2,
 and various of its elected and appointed
 representatives in their official capacities,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                           (D.C. No. 1:17-CV-00629-RBJ)
                       _________________________________

John R. Stanek, Anderson, Dude, and Lebel, Colorado Springs, Colorado (William K.
Dude, Anderson, Dude, and Lebel, Colorado Springs, Colorado, and W. Stuart Stuller,
Caplan & Ernest, LLP, Boulder, Colorado, with him on the briefs), appearing for
Appellant.

Michael C. Cook, Cook Varriano, P.C., Colorado Springs, Colorado, appearing for
Appellee.
                      _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       In this appeal, Defendant-Appellant Harrison School District No. 2 asks us to
reverse the district court’s ruling that it violated the Individuals with Disabilities

Education Act (IDEA) by failing to provide Plaintiff-Appellee Steven R.F. with a free

appropriate public education. Because we conclude that the case is moot, we dismiss this

appeal, vacate the district court’s ruling, and remand with instructions to dismiss as moot.

                                               I

       The IDEA provides federal funds to states for educating children with disabilities,

guaranteeing disabled children between the ages of three and twenty-one access to a free

appropriate public education (FAPE). 20 U.S.C. §§ 1400(d), 1412(a)(1). A FAPE

“emphasizes special education and related services designed to meet [the child’s] unique

needs.” Id. § 1400(d). A child’s individualized education program (IEP) governs how a

school will provide him or her a FAPE. See id. § 1414(d)(1)(A). The IEP is a written

statement developed in a meeting attended by the student’s parents, teacher, and a special

education professional that summarizes the student’s abilities, outlines goals for the

student’s education, specifies the services the student will receive to achieve those goals,

and establishes criteria to evaluate the student’s progress. Id. § 1414(d)(1).

       The IDEA also requires state and local educational agencies receiving funding

under the Act to “establish and maintain procedures . . . to ensure that children with

disabilities and their parents are guaranteed procedural safeguards with respect to the

provision” of a FAPE. Id. § 1415(a); see also Honig v. Doe, 484 U.S. 305, 311–12

(1988). For example, the IDEA requires that a child’s parents be notified by the school

district of any proposed change to the child’s educational placement. 20 U.S.C.

§ 1415(b)(3). It also requires that the parents be permitted to participate in discussions

                                               2
relating to their child’s evaluation and education. Id. § 1414(d)(1)(B)(i). And it requires

states to allow parents the opportunity to bring a complaint about “any matter relating to

the identification, evaluation, or educational placement of [their] child, or the provision

of a [FAPE] to such child.” Id. § 1415(b)(6).

                                              II

       Steven R.F. is a fourteen-year-old boy with severe autism. In 2013, the District

agreed to place Steven at the Alpine Autism Center, a private out-of-district facility in

Colorado Springs.

       In 2014, the District proposed to move Steven from Alpine to a public school

called the School of Excellence (SOE) for the 2014–2015 schoolyear. Steven’s mother,

Carrie Fernandez (Mother), objected and filed a state complaint asserting various IDEA

violations. After an investigation, the State Complaint Officer (SCO) agreed with Mother

and issued a written decision (2014 SCO Order). As a remedy, the SCO ordered, among

other things, that the District could not change Steven’s placement until: (1) staff

members from any new placement “proposed by” the District “have observed [Steven] . .

. at [Alpine] to understand the nature of [his] educational and behavioral functioning” and

(2) the District “convenes an IEP meeting, facilitated by a neutral facilitator (not

employed by the School District) . . . and develops an IEP that includes a description of

placement sufficient to allow [Mother] to understand what is being proposed.” App.,

Vol. II at 618. Steven remained at Alpine for the 2014–2015 and 2015–2016

schoolyears.

       On March 29, 2016, and April 5, 2016, the District held Steven’s IEP meeting for

                                              3
the 2016–2017 schoolyear. The IEP meeting was facilitated by the District’s school

psychologist, Michelle McFall. Toward the end of the meeting, after agreeing on

required aspects of the IEP, the attendants discussed what facility Steven would attend.

Amy Lloyd, the District’s special education coordinator, proposed three alternatives:

Roundup Fellowship, Alpine, and the SOE. The team decided on the SOE, over

Mother’s objection. At the time of the IEP meeting, no staff members from either the

SOE or Roundup had observed Steven at Alpine.

      After the meeting, McFall prepared a “Prior Written Notice of Special Education

Action” summarizing the IEP Team’s discussions and decisions. The notice identified

the SOE as Steven’s placement for 2016–2017, but did not identify which program within

the SOE Steven would attend.

      The SOE is a public school operated by Pikes Peak Board of Cooperative

Educational Services. The SOE has two programs relevant in this case: the

Communication and Language program (COLA) and the Learning Independence by

Educating Responsible Trustworthy Youth program (LIBERTY). COLA is designed for

students who have significant behavior issues and who are largely unable to work

independently. LIBERTY is designed for students with either an autism spectrum

diagnosis or a dual diagnosis and who are generally able to express their wants and needs

and are able to work in small groups. The District believed that either program could

have implemented Steven’s IEP.

      On May 5, 2016, Mother filed another state complaint alleging that the District

violated the 2014 SCO Order by changing Steven’s educational placement and by not

                                            4
utilizing a neutral facilitator for his 2016 IEP meeting. She also asserted that the

District’s placement decision of the SOE was not based on Steven’s individual needs, that

the District wrongfully predetermined Steven’s placement, and that the District did not

make a written offer of educational placement. After an investigation, the SCO ruled, as

relevant, that the District had violated the 2014 SCO Order by not utilizing a neutral

facilitator for Steven’s 2016 IEP meeting, and that the District’s decision to move Steven

to the SOE was predetermined and not based on Steven’s individual needs.

       The District challenged the SCO decision by filing a due process complaint with

the Colorado Office of Administrative Courts pursuant to 20 U.S.C. § 1415(f). The

District sought a determination that its proposal to transfer Steven to the SOE for the

2016–2017 schoolyear was an appropriate offer of FAPE. The Administrative Law

Judge deciding the complaint concluded that the “District made an offer of FAPE, and

that any procedural violations that may have occurred did not deprive [Steven] of FAPE

or educational benefit, and did not deprive [Mother] of her right to meaningfully

participate in the decision-making process.” App., Vol. II at 439.

       Mother appealed the ALJ’s determination to federal district court pursuant to 20

U.S.C. §§ 1415(i)(2)(A) and (3)(A) and 34 C.F.R. § 300.516(b) and asked the district

court to find that the 2016–2017 IEP denied Steven the FAPE to which he is entitled.

She asserted that the District violated the IDEA by: (1) not complying with the terms of

the 2014 SCO Order; (2) not identifying Steven’s proposed educational placement

(COLA or LIBERTY) in his 2016–2017 IEP; (3) predetermining Steven’s placement in



                                              5
the SOE; and (4) creating an IEP not based on Steven’s individual needs.1 After merits

briefing, the district court concluded that the District had violated the 2014 SCO Order

and various procedural protections within the IDEA, and that these violations amounted

to the denial of a FAPE. Specifically, the district court ruled, as regards Steven’s 2016

IEP: (1) the District failed to include a specific offer of educational placement; (2) the

District failed to comply with the requirements of the 2014 SCO Order,2 which were

designed to protect Mother’s right to a “fair IEP meeting,” which includes “a clear offer

of educational placement” and “meaningful participation in the IEP process,” App., Vol.


       1
        Mother also asserted a claim for a violation of the Rehabilitation Act, 29
U.S.C. § 701 et seq. The district court concluded that the District did not violate the
Rehabilitation Act, and Mother does not appeal that ruling.
       2
        The 2014 SCO Order prohibited the District from changing Steven’s
educational placement until:

       a. The School District conducts [a] comprehensive evaluation[] of
          [Steven], in accordance with the requirements of IDEA;

       b. Staff members from any new placement proposed by the School
          District, which staff would have responsibility for providing special
          education and related services to [Steven] have observed [him] . . . at
          [Alpine] to understand the nature of [his] educational and behavioral
          functioning.

       c. The School District convenes an IEP meeting, facilitated by a neutral
          facilitator (not employed by the School District), for [Steven] that
          complies with all procedural requirements of IDEA, particularly all
          of the provisions that the SCO has found the School District to have
          violated, and develops an IEP that includes a description of
          placement sufficient to allow [Mother] to understand what is being
          proposed.

App., Vol. III at 618.


                                              6
VII at 1801; and (3) taken together, those failures amounted to the denial of a FAPE. The

district court ordered the District to reimburse Mother for Steven’s tuition at Alpine for

2016–2017 and awarded her attorney’s fees as the prevailing party.

                                             III

       Mother argues that the appeal is moot, and we must address that issue first because

Article III limits courts to adjudicating “actual, ongoing controversies.” Honig, 484 U.S.

at 317. To satisfy the case-or-controversy requirement of Article III, “the parties ‘must

continue to have a personal stake in the outcome of the lawsuit’ throughout the various

stages of litigation.” Garcia v. Bd. of Educ. of Albuquerque Pub. Sch., 520 F.3d 1116,

1123 (10th Cir. 2008) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990)).

       This case concerns Steven’s 2016–2017 IEP, which governed a schoolyear that

has passed. Although Mother initially sought and was awarded reimbursement for

Steven’s tuition at Alpine, the parties agree that the District paid for Steven’s enrollment

at Alpine pursuant to the IDEA’s stay-put provision,3 and need not reimburse Mother for

anything. Therefore, unless a mootness exception applies, there is no “actual, ongoing

controvers[y]” before us. Honig, 484 U.S. at 317.

       The District argues that this case falls into the exception to the mootness doctrine

for cases “capable of repetition yet evading review.” Id. at 318 (quoting Murphy v. Hunt,

455 U.S. 478, 482 (1982) (per curiam)). This exception, which applies only in


       3
        The stay-put provision provides that “during the pendency of any
proceedings conducted pursuant to [the IDEA], unless the State or local educational
agency and the parents otherwise agree, the child shall remain in [his] then-current
educational placement . . . .” 20 U.S.C. § 1415(j).
                                              7
“exceptional situations,” Spencer v. Kemna, 523 U.S. 1, 17 (1998), can prevent dismissal

on mootness grounds when “(1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there [i]s a reasonable

expectation that the same complaining party would be subjected to the same action

again,” Murphy, 455 U.S. at 482 (quoting Ill. Elections Bd. v. Socialist Workers Party,

440 U.S. 173, 187 (1979)).

       The first prong of the exception is clearly satisfied. A one-year IEP is, by its

nature, “too short [in duration] to be fully litigated prior to its . . . expiration.” Id.; see

also Sch. Comm. of Town of Burlington v. Dep’t of Educ., 471 U.S. 359, 370 (1985)

(“[T]he [IDEA] review process is ponderous. A final judicial decision on the merits of an

IEP will in most instances come a year or more after the school term covered by that IEP

has passed.”).

       The pivotal issue then becomes whether the District has shown that there is a

“reasonable expectation” that it will be subjected to the same action again. The District’s

“reasonable expectation” must be more than “a mere physical or theoretical possibility”;

it must be something akin to a “demonstrated probability” that the District will again be

in this situation. Murphy, 455 U.S. at 482. The District argues that Mother “almost

certainly will challenge [Steven’s most recent] IEP when these proceedings have been

completed,” Aplt. Reply at 5, and notes that “[a]t the end of [Steven’s December 4, 2018]

IEP meeting, [Mother] expressed her disagreement” with the IEP team’s proposed

placement at Sierra High School in its The Autism Program, id. at n.2. The District

argues a live controversy remains: whether the District will have to maintain Steven’s

                                                8
enrollment at Alpine during the pendency of any challenge by Mother to Steven’s

December 4, 2018 IEP. Even assuming that this amounts to a reasonable expectation of

future IDEA disputes between the District and Mother, it does not satisfy the mootness

exception in this case because the procedural challenges Mother raises are fact-specific to

Steven’s 2016–2017 IEP proceedings.

       Mother relies on two cases in support of her mootness argument: Board of

Education of Downers Grove Grade School District No. 58 v. Steven L., 89 F.3d 464 (7th

Cir. 1996), and District of Columbia v. Jeppsen ex rel. M.J., 468 F. Supp. 2d 107 (D.D.C.

2006). Each case involved a challenge to an IEP for a completed schoolyear and the

application of the stay-put provision preventing the school from implementing the

challenged IEP. See Steven L., 89 F.3d at 465; Jeppsen, 468 F. Supp. 2d at 109. In

Steven L., by the time the case reached the Seventh Circuit, the child’s parents had

“already agreed to a new IEP with a different school district.” 89 F.3d at 467. In

Jeppsen, the parents and school district had reached a settlement and agreed to the

student’s educational placement for the schoolyear at issue. 468 F. Supp. 2d at 110. In

each case, the court concluded that the case was moot. In Steven L., the court concluded

that the capable-of-repetition exception did not apply because

       [the student] has successfully completed grade school and is on his way to
       high school. He will never again attend fifth grade [(the grade to which the
       challenged IEP related)]. The IEP modification at issue . . . has been
       replaced by an IEP for [the student]’s high school years. [The student]’s
       parents struck this agreement with a different entity than the [Defendant
       Board]. There is no continuing controversy. This school district has no
       authority to modify any IEP involving [the student].

89 F.3d at 468. In Jeppsen, the district court also concluded that the exception did not

                                             9
apply, even though “it is likely both that [the district] will attempt to move [student’s]

placement in the future and that the change will be challenged by [parent],” because “it is

impossible to predict whether a hearing officer will continue to support the [challenged]

placement.” 468 F. Supp. 2d at 112 n.5.

       These cases support our conclusion that this case is moot. In each case, “[b]ecause

the status quo remained in effect from the time [the parents] challenged the school

district’s attempt to modify the IEP, they de facto received the relief they originally

sought . . . ; the modified IEP never took effect.” Steven L., 89 F.3d at 468; accord

Jeppsen, 468 F. Supp. 2d at 111–12. And, in each case, there was no evidence that the

asserted IDEA violation was likely to occur again. Steven L., 89 F.3d at 468 (“This

school district has no authority to modify any IEP involving [student].”); Jeppsen, 468 F.

Supp. 2d at 112 n.5 (“[I]t is likely that [student’s] IEP will change in the future, thus, it is

impossible to predict whether a hearing officer will continue to support the [challenged]

placement.”).

       Each of those facts is present in this case. By operation of the stay-put provision,

Steven remained at Alpine for the 2016–2017 schoolyear and, we assume, he has

continued to remain there. And, although the District asserts that Mother “almost

certainly will challenge” Steven’s December 4, 2018 IEP, Aplt. Reply at 5, nothing

indicates that, even if she does challenge it, her challenges will be of the same procedural

nature as those she brought in this case. A discussion of Honig, on which the District

relies in support of its capable-of-repetition argument, clarifies this point.

       In Honig, two students eligible for special education because of emotional

                                              10
disturbance challenged indefinite suspensions by their school district. 484 U.S. at 312–

13. Each student had engaged in “violent and disruptive conduct,” but it was undisputed

that the students’ conduct was “related to their disabilities.” Id. at 312. The Supreme

Court concluded that the case was moot for one student, who was twenty-four and no

longer IDEA-eligible. Id. at 318. The other student, however, was twenty, had not

completed high school, and was therefore still entitled to a FAPE. Id. The Court

concluded that the twenty-year-old student’s claims were not moot because of his

“continued eligibility for educational services under [the IDEA], the nature of his

disability, and [the school district’s] insistence that all local school districts retain

residual authority to exclude disabled children for dangerous conduct.” Id. at 318–19

(footnote omitted). This conclusion relied on the “inextricable link between the student’s

violent behavior and the challenged policy of exclusion.” Brown v. Bartholomew

Consol. Sch. Corp., 442 F.3d 588, 599 (7th Cir. 2006). Given the nature of the student’s

disability and the school district’s assertion that it could unilaterally refuse to provide

educational services to the student, the Supreme Court had “little difficulty concluding

that there [wa]s a ‘reasonable expectation,’ that [the student] would once again be

subjected to” the precise action challenged in that case, and it therefore concluded that his

claim was not moot. Honig, 484 U.S. at 319–20 (quoting Murphy, 455 U.S. at 478).

       The certainty of the continued dispute is not present here as it was in Honig. Even

assuming the District is correct that Mother “almost certainly will challenge” Steven’s

new IEP, Aplt. Reply at 5, there is no reason to conclude—must less a demonstrated

probability—that any subsequent IDEA challenge will be premised on the same

                                               11
procedural shortcomings by the District that Mother challenges in this case.4 Mother’s

challenges to Steven’s 2016–2017 IEP were based on specific actions that she alleged the

District did not take in relation to Steven’s 2016–2017 IEP. As relevant on appeal, she

challenged the District’s failure to (1) have a staff member from the new placements

proposed by the District (Roundup and the SOE) observe Steven at Alpine, (2) utilize a

neutral facilitator for Steven’s IEP meeting, and (3) adequately identify Steven’s

proposed educational placement. Nothing suggests that these alleged procedural failures

will be at issue in any subsequent IDEA challenge Mother brings.5 If we decided now,

more than three years after the challenged actions, whether those alleged failures


       4
         In fact, the District’s assertions about what happened in the December 2018
IEP meeting indicate that the challenges Mother brings to Steven’s new IEP likely
will not be of the same nature as those she brought in this case. The District stated in
briefing that during Steven’s 2018 IEP meeting, “[t]he IEP team determined and
proposed that [Steven] be educated at his neighborhood high school, Sierra High
School in its The Autism Program.” Aplt. Reply at 5. Therefore, Mother’s argument
in this case that the IDEA required the District to identify Steven’s placement as
either COLA and LIBERTY (not merely the SOE) seems unlikely to be at issue in
any challenge Mother may bring to Steven’s most recent IEP.
       5
         It is true that the parties have been involved in IDEA-related disputes before,
and that Mother has consistently opposed the District’s attempts to place Steven
somewhere other than Alpine. And in some circumstances, ongoing disagreement
could satisfy the capable-of-repetition exception to mootness. See, e.g., Jenkins v.
Squillacote, 935 F.2d 303, 308 (D.C. Cir. 1991) (concluding that an IDEA claim was
not moot when “both litigants readily agreed that the question of the degree of
specificity required of the District in providing notice to parents under the IDEA is . .
. . reasonably likely to be a recurring legal question with respect to the District’s
educational plans for the very pupil whose parents are now before this court”). But
the only IDEA claims at issue on appeal are the District’s alleged procedural
violations in creating Steven’s 2016–2017 IEP. And although it is possible that the
District might again create an IEP with the same alleged deficiencies, the record does
not contain a “demonstrated probability” that it will.

                                            12
amounted to a violation of the IDEA, we “would be issuing, in effect, an advisory

opinion. Our decision would merely tell the parties who was correct . . . . It would do

nothing to define the contours of the parties’ continuing legal relationship under the

IDEA such that future repetitions of the injury could be avoided.” Brown, 442 F.3d at

599–600.

       Despite arguing that the appeal is moot, Mother argues that the district court case

“falls within the exception to the mootness doctrine.” Aplee. Br. at 6. In support, she

asserts that “the District continues to attempt to change Steven’s educational placement in

violation of the IDEA.” Id. However, as discussed, the capable-of-repetition exception

in the IDEA context looks at the likelihood that the specific IDEA violations alleged will

be repeated. And the record does not indicate that it is reasonably likely that the District

will again violate the IDEA in the specific ways that Mother alleges it did in this case.

Because there is no “reasonable expectation” that the IDEA violations Mother asserts are

likely to happen again, the capable-of-repetition exception does not prevent us from

concluding that the district court action is also moot.6

       Because the case is moot, we dismiss this appeal, vacate the district court’s ruling,

and remand with instructions to dismiss as moot. See Lewis, 494 U.S. at 482 (1990)



       6
         As noted, Mother asserted both substantive and procedural IDEA violations
in district court. As discussed, the record does not support a conclusion that the
procedural violations are reasonably likely to occur again. And even if the record
could support a conclusion that the substantive violations are reasonably likely to
occur again, Mother does not argue that distinction, pointing only to the District’s
alleged procedural violations.

                                             13
(“Our ordinary practice in disposing of a case that has become moot on appeal is to

vacate the judgment with directions to dismiss.”).7




       7
        Mother’s argument that equity dictates that we affirm the district court’s
judgment and remand for a determination of attorney’s fees has no support in the law.
Under the IDEA, only the “prevailing party” can be awarded attorney’s fees. 20
U.S.C. § 1415(i)(3)(B). A party can only be determined to prevail if it does so on the
merits or with “the necessary judicial imprimatur,” such as through a consent decree.
Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S.
598, 605 (2001). Because the case is moot, the court does not have jurisdiction to
make a determination on the merits, and Mother cannot be a “prevailing party” under
the IDEA.
       Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1129
(10th Cir. 2010), which Mother cites in support of her argument for attorney’s fees,
does not dictate otherwise. Silvery Minnow noted that “if the party seeking vacatur
has caused mootness, generally we do not order vacatur.” Id. That is not the
circumstance here. This case has become moot by the passage of time and the nature
of the IDEA violations at issue, not by any action by the District.
                                            14
