                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-1449


LAURA LORENZEN; THOMAS LORENZEN; S.L., a minor, by parent
and next friend, Thomas Lorenzen and Laura Lorenzen,

                Plaintiffs – Appellees,

           v.

MONTGOMERY COUNTY BOARD OF EDUCATION; JERRY D.            WEAST,
(officially as) Superintendent, Montgomery County         Public
Schools,

                Defendants – Appellants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:07-cv-02405-AW)


Argued:   September 22, 2010             Decided:   December 7, 2010


Before MOTZ and SHEDD, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.


Vacated and remanded by unpublished opinion. Judge Shedd wrote
the opinion, in which Judge Motz and Judge Davis joined.


ARGUED: Jeffrey A. Krew, JEFFREY A. KREW, LLC, Ellicott City,
Maryland, for Appellants.       Michael Eig, MICHAEL J. EIG &
ASSOCIATES, PC, Chevy Chase, Maryland, for Appellees. ON BRIEF:
Paula A. Rosenstock, MICHAEL J. EIG & ASSOCIATES, PC, Chevy
Chase, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      S.L.    and     her    parents,       Thomas           and   Laura    Lorenzen      (the

“Lorenzens”), sued the Montgomery County Board of Education and

its Superintendent, Jerry D. Weast (collectively “MCPS”), under

the   Individuals       with      Disabilities           Education      Act,     20    U.S.C.

§ 1400, et seq. (“IDEA”).                 The district court granted summary

judgment in favor of the Lorenzens.                      MCPS now appeals.            For the

following     reasons,       we    vacate      the      district      court’s     order    and

remand the case for further proceedings.



                                              I.

      S.L. is an autistic student who is eligible for special

education services under the IDEA.                       Pursuant to the IDEA, MCPS

prepared an Individualized Education Program (“IEP”) dated July

18,   2006,    for     S.L.       for   the     2006-2007          school    year.        MCPS

subsequently drafted a second IEP for S.L. dated November 14,

2006.    This       second     IEP      amended        the    earlier      IEP   to   include

occupational therapy and physical therapy goals and objectives

for S.L., but both IEPs proposed placing S.L. at the Learning

Center   at    Strathmore         Elementary           School      (“Strathmore”).        The

Lorenzens objected to both IEPs and elected to enroll S.L. in

Kingsbury Day School (“Kingsbury”), a private special education

school, for the 2006-2007 school year. On January 26, 2007, the

Lorenzens     filed    a    request      for       a   due    process      hearing    seeking

                                               3
tuition      reimbursement        for     the       cost     of    enrolling       S.L.     in

Kingsbury.

        After a due process hearing, an Administrative Law Judge

(“ALJ”)      concluded     the    July       18    IEP     violated      IDEA    procedural

requirements and denied S.L. a free appropriate public education

(“FAPE”) during the first semester of 2006.                             However, the ALJ

also found the amended November 14 IEP was reasonably calculated

to provide S.L. a FAPE for the remainder of the 2006-2007 school

year.        Therefore,        the     ALJ     awarded       the       Lorenzens       tuition

reimbursement for the first semester of the 2006-2007 school

year but declined to award tuition reimbursement for the second

semester.

     On September 11, 2007, the Lorenzens filed this action in

district court seeking review of the ALJ’s decision, and both

parties      moved   for       summary       judgment.            In    their    supporting

memoranda, the Lorenzens asked the district court to consider

“additional evidence” 1          that was not a part of the administrative

record      and   that   had     not    been       considered      by    the    ALJ.      This

“evidence” 2 is that on July 24, 2007, three months after the


        1
       In an action brought under the IDEA, the district court
“shall hear additional evidence at the request of a party.” 20
U.S.C. § 1415(i)(2)(C)(ii).
        2
       There was no presentation of additional evidence.                                   The
Lorenzens simply made this assertion in their memoranda.



                                               4
completion      of   the    due    process      hearing,   the    MCPS      IEP    team

determined       that    Strathmore       was    no   longer     an      appropriate

placement for S.L.

        The Lorenzens characterized the new placement in the July

24 IEP as a “striking reversal” of MCPS’s previous litigation

position       regarding     the    appropriateness        of    the        Strathmore

placement.       According to the Lorenzens, the three different IEP

teams    made    their     placement     determinations    based       on    the   same

information regarding S.L.’s educational needs, but there had

been no change in S.L.’s needs between November 2006 and July

2007    that    would    account   for    the    differences     in   the    proposed

IEPs.     Thus, the Lorenzens contended that the reversal by MCPS

constituted an after-the-fact admission by MCPS that Strathmore

was not an appropriate placement for S.L. during the 2006-2007

school year.         Therefore, the Lorenzens argued, the November 14

IEP, which proposed that S.L. be placed at Strathmore, could not

have been reasonably calculated to provide S.L. a FAPE during

the second semester of 2006-2007.

       In response, MCPS filed a memorandum that included evidence

in the form of a sworn Affidavit of Virginia Ross, a special

education supervisor for MCPS.                 In her affidavit, Ross stated,

among other things, that she was a member of the IEP team that

met on July 24, 2007; that the team concluded S.L.’s “special

education needs had changed during the 2006-2007 school year;”

                                           5
and that the team “determined [S.L.’s] needs could no longer be

met at Strathmore” for the 2007–2008 school year.                   J.A. 242-44.

      In   light    of   what    it    considered    to    be   MCPS’s   voluntary

reversal    of     its   position      shortly     after    the    administrative

hearing, the district court found the November 14 IEP was not

reasonably calculated to provide educational benefit to S.L. and

therefore had denied S.L. a FAPE.                   Accordingly, the district

court granted summary judgment in favor of the Lorenzens and

awarded the Lorenzens tuition reimbursement for both the first

and   second     semesters      of    the    2006-2007    school   year. 3      MCPS

appealed.



                                            II.

      “[W]e review de novo the district court’s award of summary

judgment, viewing the facts and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.”

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).                        Summary

judgment is appropriate “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

      3
       The district court affirmed the ALJ’s determination that
MCPS denied S.L. a FAPE during the first semester of the 2006-
2007 school year and awarded the Lorenzens tuition reimbursement
for that semester.    MCPS does not appeal that portion of the
district court’s ruling.



                                            6
is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).

       On appeal, MCPS does not dispute that the July 24, 2007 IEP

team       changed       S.L.’s    recommended       placement.         Rather,     MCPS

contends there is a genuine dispute as to the material facts

related to why the MCPS IEP team changed S.L.’s placement in

July       2007    and     whether       the   change   was    relevant    to      S.L.’s

placement during the 2006-2007 school year.                    We agree.

       In    support       of     their    motion    for    summary     judgment,     the

Lorenzens         asserted      that     S.L.’s    needs    had   not    changed     from

November 2006 to July 2007 and that MCPS’s reversal in July 2007

was therefore a relevant subsequent event with regard to the

appropriateness of S.L.’s placement during the 2006-2007 school

year.       However, regardless of the truth or relevance of these

assertions,         they     do    not    constitute       admissible    evidence     for

purposes of summary judgment. 4

       In contrast, the affidavit submitted by MCPS in response to

the    Lorenzens’        assertions       is   admissible     evidence.      As     such,

Ross’s affidavit states the July 24 IEP team determined that


       4
       The Lorenzens’ supporting memoranda sought to explain the
“additional evidence” and to respond to Ross’s affidavit.
However, the Lorenzens did not testify under oath or submit any
affidavits or discovery, nor does their supporting memoranda
constitute “pleadings” for purposes of summary judgment under
Rule 56(c). See Fed. R. Civ. P. 7(a).



                                               7
S.L.’s special needs had changed during the 2006-2007 school

year and that S.L.’s needs could no longer be met at Strathmore.

Ross’s   affidavit      clearly     indicates     the   July   24    IEP   dealt

prospectively with S.L.’s needs for the then-upcoming 2007-2008

school year.         Nothing in the affidavit indicates the July 24

placement decision was an admission by MCPS that Strathmore was

not an appropriate placement for S.L. for the 2006-2007 school

year;    in   fact,     the   affidavit       asserts   that   the    2007-2008

determination “in no way indicated that the team believed that

Kingsbury     Day    School   was    an   appropriate    placement     for   the

Student.”     J.A.    244.     The    Lorenzens     offered    no    admissible

evidence to refute Ross’s affidavit.

     When viewed in the light most favorable to MCPS, the only

reasonable inference to be drawn from Ross’s affidavit is that

S.L.’s needs had changed during 2006-2007 in such a way as to

justify a decision to change her placement for the 2007-2008

school year.         Thus, at a minimum, Ross’s affidavit creates a

genuine issue of material fact with regard to the reasons MCPS

changed S.L.’s recommended placement for 2007-2008.

     In granting the Lorenzens’ motion for summary judgment, the

district court improperly construed the evidence in favor of the

Lorenzens and erroneously concluded there was no genuine issue

of material fact with regard to the reasons MCPS changed S.L.’s



                                          8
placement in July 2007. 5     In doing so, the district court erred

by failing to draw all reasonable inferences from the evidence

in favor of MCPS as the nonmoving party.



                                     III.

     Based   on   the   foregoing,    we    vacate   the   district   court’s

grant of summary judgment in favor of the Lorenzens, and we

remand to the district court for further proceedings.



                                                      VACATED AND REMANDED




     5
       In appeals under IDEA we generally conduct a modified de
novo   review,   giving   “due   weight”   to   the    underlying
administrative proceedings. Bd. of Educ. v. Rowley, 458 U.S. 176
(1982); Doyle v. Arlington County Sch. Bd., 953 F.2d 100, 103
(4th Cir. 1991).   However, our cases also indicate that when a
district court hears additional evidence in an IDEA proceeding
pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii), we apply a clear
error standard of review. See MM ex rel. DM v. School Dist. of
Greenville County, 303 F.3d 523, 531 n.12 (4th Cir. 2002); see
also County School Bd. of Henrico County, Virginia v. Z.P. ex
rel. R.P., 399 F.3d 298, 309 n.7 (4th Cir. 2005) (noting IDEA
cases where we sometimes apply a summary judgment standard of
review and sometimes review for clear error).    Although we are
reviewing the district court decision under the summary judgment
standard, to the extent the district court engaged in fact
finding, the district court was clearly erroneous when it
determined that the new placement for 2007-2008 and Ross’s
affidavit (which was the only evidence in this record) were
tantamount to an admission that the 2006-2007 placement for S.L.
was inappropriate.



                                      9
