                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               APR 3 2003
                                       TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 L.C., and K.C., as individuals and as
 guardians on behalf of N.C., a minor
 child, and as class representative of all
 others similarly situated,

           Plaintiffs-Appellants,
 v.                                                          No. 02-4090
 UTAH STATE BOARD OF                                 (D.C. No. 2:98-CV-207-C)
 EDUCATION; UTAH STATE                                       (D. Utah)
 DEPARTMENT OF EDUCATION;
 OGDEN CITY SCHOOL DISTRICT;
 STEVEN O. LAING, Utah State
 Superintendent of Public Instruction;
 MAE TAYLOR, Director of Special
 Education Services; GINGER RHODE,
 Coordinator, Special Education State and
 Federal Compliance Officer; TED
 ADAMS, Superintendent of Ogden City
 School District; MOZELLE
 PRESTRIDGE, Special Education
 Coordinator,

           Defendants-Appellees.


                                    ORDER AND JUDGMENT*




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Before BRISCOE, McKAY and McCONNELL, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       L.C. and K.C., parents of N.C., a child covered by the Individuals with Disabilities

Education Act (IDEA), 20 U.S.C. § 1400 et seq., appeal the district court's order granting

summary judgment in favor of the defendants. See L.C. v. Utah State Bd. of Educ., 188

F. Supp. 2d 1330, 1341 (D. Utah 2002). Because we conclude the order appealed is not a

final appealable order as required by 28 U.S.C. § 1291, we dismiss the appeal for lack of

jurisdiction and remand for further proceedings.

       The parents filed suit against the Utah State Board of Education, the Utah State

Office of Education, the State Superintendent in his official capacity, and Mae Taylor,

Utah's Federal and State Compliance Officer, in her official and individual capacities, the

Ogden School District, and several Ogden School District administrators in their official

capacities. The parents alleged the defendants' efforts to educate N.C. did not meet the

standards set by IDEA and the defendants' conduct after the parents challenged the

services violated the procedural guarantees of both the IDEA and the Due Process Clause




                                             2
of the United States Constitution.1 The district court framed the parents' claims as

follows:

       1. Under 20 U.S.C. § 1400 et seq. (IDEA), claiming that the substantive outcome
       of the IDEA hearing process violated N.C.'s right to receive a free and appropriate
       public education;

       2. Under 42 U.S.C. § 1983, claiming that the defendants failed to provide N.C.,
       L.C., and K.C. with the due process protections guaranteed under IDEA; and

       3. Under 42 U.S.C. § 1983, for failure to provide due process protections
       guaranteed by the Due Process Clause of the Fifth Amendment.

L.C., 188 F. Supp. 2d at 1335 (emphasis added); see also L.C. v. Utah State Bd. of Educ.,

57 F. Supp. 2d 1214, 1217 (D. Utah 1999) (recounting the same allegations in order

denying defendants' motion to dismiss).

       During the time this matter was pending, we concluded in Padilla v. School

District No. 1, 233 F.3d 1268 (10th Cir. 2000), that IDEA's enforcement scheme is so

comprehensive that claims alleging IDEA violations under 42 U.S.C. § 1983 are

precluded. See 233 F.3d at 1274. Following our decision in Padilla, defendants moved

for summary judgment, arguing (1) plaintiffs could not sue under § 1983 for IDEA

violations; (2) plaintiffs failed to state a claim for violations of IDEA's due process

guarantees; (3) defendants were entitled to immunity from § 1983 liability under the



       1
         The IDEA includes both substantive and procedural guarantees that are
enforceable in civil litigation. See, e.g., J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 64-70 (2d
Cir. 2000) (reviewing district court's conclusions regarding both substantive and
procedural IDEA claims).

                                              3
Eleventh Amendment; and (4) defendant Taylor was entitled to qualified immunity. L.C.,

188 F. Supp. 2d at 1335 (emphasis added). Relying upon Padilla, the district court

granted judgment in favor of defendants with respect to all § 1983 claims that were based

upon alleged violations of IDEA. The court further concluded the parents failed to

present sufficient evidence to create a factual dispute with regard to their constitutional

due process claim. See id. at 1336-38. Relevant to this appeal, the court also concluded

the parents failed to establish a violation of IDEA's procedural protections. See id. at

1338-39 (addressing the statutory 45-day rule, the impartiality of the hearing officer, and

the propriety of permitting Taylor, the person who suggested appointing the hearing

officer, to testify).

        The parents moved for reconsideration, arguing inter alia that the “court's opinion

recites the standards for reviewing the record, but then does not review the record. The

opinion does not address whether [N.C.] received a 'free appropriate public education'

under” IDEA. App. at 465-66. The district court denied reconsideration, concluding that

while it may not have “enunciated each and every reason for its previous order, all

arguments and facts were carefully considered and weighed.” Id. at 466.

        The parents appealed the district court's judgment, but only insofar as it addressed

their IDEA claims. See Aplt. Br. at 1. Upon review of the parties' briefs, we directed the

parties to address whether the judgment of the district court was a final appealable order

which satisfied 28 U.S.C. § 1291. Specifically, it appeared the defendants' motion for


                                              4
summary judgment, which the district court granted in full, did not seek summary

judgment on the parents' “substantive” IDEA claim.

       The defendants make two arguments in their jurisdictional brief. They contend the

parents' appellate brief did not raise the issue of their substantive IDEA claim. While it is

true the parents' brief does not specifically identify the denial of the substantive IDEA

claim as an issue appealed, they do argue their substantive IDEA claim had merit. Aplt.

Br. at 46-51. Further, the defendants' argument overlooks our continuing duty to

independently examine whether we have jurisdiction to act. See Steel Co. v. Citizens for

Better Env't, 523 U.S. 83, 95 (1998). In addition, the defendants argue the district court's

failure to address the parents' substantive claim is excusable because the parents failed to

defend it during the summary judgment phase. While this argument implies some type of

waiver of the unadjudicated substantive claim by the parents, the parents had no duty to

address the claim when the defendants did not seek summary judgment on it. Likewise,

the district court had no reason to address the claim when the defendants did not include

the substantive claim among those upon which it sought summary judgment.

       The parents suggest that while the defendants did not address the substantive claim

during the summary judgment stage and the district court did not consider it, the court's

order “nonetheless did dismiss the entire action and close the case, . . . creating what we

believe is a final, appealable order.” Aplt. Jur. Br. at 3 (emphasis in original). Despite

the parents' invitation to overlook the unadjudicated claim, it has long been recognized


                                              5
that parties cannot confer jurisdiction upon this court. See Kennedy v Lubar, 273 F. 3d

1293, 1301 (10th Cir. 2001). Instead, we have an obligation to act only where the

judgment of the district court is final or where certain limited exceptions, such as the

Cohen “collateral order” doctrine, apply. See Stewart v. Oklahoma, 292 F. 3d 1257, 1259

(10th Cir. 2002). Because the district court's order disposes of most, but not all claims,2

we conclude it is neither final nor one that falls within one of the limited exceptions.

       The appeal is DISMISSED for lack of jurisdiction and the case is REMANDED to

the district court for further proceedings.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




       2
          In Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir. 1988), we
indicated that rulings encompassing fewer than all claims may nonetheless be considered
by this court where a party seeks and obtains a Fed. R. Civ. P. 54(b) certification from the
district court. The parents expressly state they have not sought a Rule 54(b) certification.

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