          United States Court of Appeals
                        For the First Circuit


Nos. 17-1311, 17-1817

 J.S., individually and as parent and legal guardian of M.S., a
  minor; T.S., individually and as parent and legal guardian of
                          M.S., a minor,

                        Plaintiffs, Appellees,

                                  v.

   THE WESTERLY SCHOOL DISTRICT; THE WESTERLY PUBLIC SCHOOLS,

                        Defendants, Appellants,

       THE STATE OF RHODE ISLAND DEPARTMENT OF EDUCATION,

                              Defendant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                                Before

                      Howard, Chief Judge,
             Torruella and Kayatta, Circuit Judges.


     Mary Ann Carroll, with whom Henneous Carroll Lombardo LLC was
on brief, for appellants.
     Gregory A. Mancini, with whom Sinapi Law Associates, Ltd. was
on brief, for appellee.


                           December 6, 2018
             KAYATTA, Circuit Judge.          M.S. is a student who until

recently was enrolled in the Westerly School District in Westerly,

Rhode Island.    M.S. suffers from Lyme Disease and other tick-borne

illnesses, and she receives educational accommodations pursuant to

Section 504 of the Rehabilitation Act of 1973. For over two years,

her parents J.S. and T.S. unsuccessfully sought to have Westerly

determine    that   M.S.    was    also   eligible   for   an   Individualized

Education Program (IEP) under the Individuals with Disabilities

Education Act (IDEA).        M.S. and her parents have since moved out

of the Westerly District, thereby mooting the dispute over M.S.'s

entitlement to an IEP.            In the course of the parties' dispute,

however, the parents obtained an order from the district court

forcing Westerly to forego conducting its own evaluations and

decide "post-haste" if M.S. was eligible for an IEP.                  Although

that decision resulted in a determination that M.S. was not

eligible, the district court subsequently awarded the parents

attorneys' fees as the prevailing parties.             Westerly now appeals

both   the   district      court's   order    compelling   it    to   determine

eligibility without first obtaining its own evaluations and the

fee award.     For the following reasons, we find the challenge to

the order moot and the attorneys' fee award mistaken.




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                                         I.

                                         A.

             We begin with a basic description of the IDEA's framework

for    determining    a   student's      eligibility      for     an    IEP    and   the

procedure    for    adjudicating    a    dispute       over    eligibility.           The

purposes of the IDEA include "ensur[ing] that all children with

disabilities have available to them a free appropriate public

education"    and    "ensur[ing]    that       the    rights     of    children      with

disabilities and parents of such children are protected."                             20

U.S.C. § 1400(d)(1)(A)-(B). To these ends, the IDEA offers federal

funds to states that provide a free appropriate public education

(FAPE) to children with disabilities.                 See generally id. §§ 1411–

1412.    Rhode Island accepted IDEA funding and agreed to provide

FAPE to disabled children.        See 21–2–54:A R.I. Code R. § 300.2(a).

             Under the IDEA and its implementing regulations, parents

may request an initial evaluation "to determine if the[ir] child

is a child with a disability."               20 U.S.C. § 1414(a)(1)(B).              Upon

receipt of such a request, the local educational agency (LEA) "must

conduct a full and individual initial evaluation . . . before the

initial provision of special education and related services to a

child with a disability."           34 C.F.R. § 300.301(a).                  As part of

this    initial    review,   a   team    of     professionals         must    "[r]eview

existing     evaluation      data       on      the     child,        including . . .

[e]valuations and information provided by the parents of the


                                        - 3 -
child."      Id. § 300.305(a); see also id. § 300.502(c) ("If the

parent . . . shares with the public agency an evaluation obtained

at private expense, the results of the evaluation . . . [m]ust be

considered by the public agency, if it meets agency criteria, in

any decision made with respect to the provision of FAPE to the

child.").       After    reviewing    any   existing      data,    the    LEA     must

"identify      what     additional     data,    if   any,       are      needed     to

determine . . .        [w]hether     the    child    is    a      child    with      a

disability . . . [and the LEA] must administer such assessments

and other evaluation measures as may be needed to produce the data

identified."     Id. § 300.305(a),(c).         Only then, "[u]pon completion

of    the    administration    of     assessments    and       other     evaluation

measures," do a group of professionals and the parents of the child

meet to determine whether the student is a child with a disability

under the IDEA and the educational needs of the child.                       Id. at

§ 300.306(a).         So, in sum, before making an IDEA eligibility

determination, the LEA must (1) review existing data, including

evaluations provided by the parents; (2) identify what additional

data are needed to determine whether the child is eligible; and

(3) administer evaluations to collect that additional data.

             When the LEA decides that it needs additional data, the

LEA   must    obtain    parental     consent    before    conducting       its     own

evaluations of the child.       See id. § 300.300(a)(1)(i) ("The public

agency proposing to conduct an initial evaluation to determine if


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a child qualifies as a child with a disability under § 300.8 must,

after providing notice . . . obtain informed consent . . . from

the parent of the child before conducting the evaluation.").                 If

the parents refuse to consent, the school can -- but is not

required    to    --    pursue   the   evaluation     through   mediation    or

administrative procedures.        See id. § 300.300(a)(3)(i).          But "the

public   agency    does    not   violate     its   obligation   [to   determine

eligibility] if it declines to pursue the evaluation."                      Id.

§ 300.300(a)(3)(ii).

            Parents who contest the identification, evaluation, or

educational placement of a child with a disability can file a "due

process complaint," which kicks off a state administrative process

for adjudicating the dispute.           See id. § 300.507(a).         Any party

aggrieved by the findings or decisions made in the administrative

proceeding has a right to bring a civil action in a United States

District Court.        See id. § 300.516(a).

                                        B.

            We now sketch the relevant facts of this case.               In the

fall of 2015, J.S. and T.S. ("the parents") requested that Westerly

determine that M.S. was eligible for special educational services

under the IDEA.        The school and the parents agreed to a meeting to

be   held   on    December 17,     2015.       The   parties    had   different

expectations about the meeting.          In a December 9 form sent to the

parents, the school indicated that the purpose of the meeting was


                                       - 5 -
to "address a referral to the Evaluation Team."                              The parents

replied that they expected the meeting to include not only a

referral discussion, but also an eligibility determination, as

there was "enough objective information for the team to consider

and make a decision."

            At    the      meeting,    the     parents     brought       with    them    two

educational advocates and a neuropsychologist.                           M.S.'s personal

physician and her audiologist phoned in. The medical professionals

presented the results of their evaluations of M.S. and their

recommendations for special educational services, and the parents

provided the school with copies of the evaluations.                             Soon after

the meeting, school officials wrote to the parents that, after

considering the independent evaluators' opinions, "there remained

significant      questions,"      in     part      because      "the   results      of   the

evaluations conducted [by the parents' experts] did not in many

ways   reflect      what    school     staff       who   know     [M.S.]    have    or   are

experiencing with her."           Consistent with its obligations under the

IDEA, Westerly undertook to "conduct evaluations to answer these

questions     and     assist      with       the     eligibility         determination."

Westerly therefore requested the parents' consent to conduct five

educational      evaluations      and    observation         by    the     school   social

worker.

            Rather         than    consent          to    the      school's        proposed

evaluations, the parents filed a due process complaint with the


                                         - 6 -
Rhode Island Department of Education in February 2016, alleging

that Westerly failed to identify M.S. as a child with a disability

who was entitled to special educational services.             In April 2016,

the administrative hearing officer assigned to the case relied on

the regulations discussed above to conclude that the district had

a right to conduct its own evaluations before making an eligibility

determination.      The    hearing   officer    consequently        ordered   the

parents to "execute all releases necessary for school department

to conduct appropriate evaluations of M.S."             The parents did not

provide consent, and in August 2016, the hearing officer dismissed

the due process complaint based on the parents' failure to comply

with its order.       The parents appealed to the District Court of

Rhode Island.

            Following a March 17, 2017 hearing on cross motions for

summary judgment, the district court eventually commanded Westerly

to determine M.S.'s eligibility based on the existing information

(without first conducting its own evaluations).              While appealing,

Westerly also complied with the district court's order by making

an eligibility determination.            M.S.'s teachers participated and

described       M.S.'s      above-average        academic        performance.

Unsurprisingly, Westerly's conclusion tracked what it told the

parents when requesting the further evaluations that the parents

had refused to permit:          The evaluations provided by the parents

were   inconsistent      with   M.S.'s    performance   in    the    classroom.


                                     - 7 -
Therefore, Westerly concluded that M.S. was ineligible for special

educational services.       The family then moved out of the school

district before any tribunal took any further action on the merits

of the case.

           In     spite    of    the     outcome        of   the   eligibility

determination, the district court subsequently found that the

parents were "prevailing parties" under the IDEA, and granted their

motion for $53,290.50 in attorneys' fees.               Westerly appealed the

attorneys' fees order to this court.            We consolidated that appeal

with Westerly's prior appeal.

                                       II.

                                       A.

           Before    assessing    the        district    court's   order    that

Westerly   make     an    eligibility        determination     without     first

conducting its own evaluations, we must ask whether this issue

remains justiciable. "A case that becomes moot at any point during

the proceedings is 'no longer a "Case" or "Controversy" for

purposes of Article III,' and is outside the jurisdiction of the

federal courts."     United States v. Sanchez-Gomez, 138 S. Ct. 1532,

1537 (2018) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013)).   We have consistently held that a case becomes moot "when

the issues presented are no longer 'live' or the parties lack a

legally cognizable interest in the outcome." Weaver's Cove Energy,

LLC v. R.I. Coastal Res. Mgmt. Council, 589 F.3d 458, 468 (1st


                                   - 8 -
Cir. 2009) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).

A party lacks a legally cognizable interest in the outcome of a

case if we are "not capable of providing any relief which will

redress the alleged injury."              Gulf of Me. Fisherman's All. v.

Daley, 292 F.3d 84, 88 (1st Cir. 2002).

            Westerly appeals the order requiring it to make an

eligibility       determination      without         the   benefit    of   its     own

evaluations.       A favorable ruling from this court could provide no

relief    from    that   order   because       the    eligibility     determination

already took place.        Moreover, if there was any doubt that this

issue is moot, such doubt disappeared at oral argument when we

learned that M.S. no longer lives in the Westerly School District.

We therefore lack the power to review the district court's order

that     Westerly     determine      M.S.'s      eligibility         without     first

conducting its own evaluations.

                                          B.

            Barred from ruling on Westerly's appeal on the merits of

the case, we turn now to the dispute over attorneys' fees.                        The

IDEA permits a court to award reasonable attorneys' fees to the

prevailing party who is a parent of a child with a disability.

See 20 U.S.C. § 1415(i)(3)(B)(i) ("In any action or proceeding

brought under this section, the court, in its discretion, may award

reasonable       attorneys'   fees   as    part       of   the   costs . . .     to   a

prevailing party who is the parent of a child with a disability.");


                                      - 9 -
34 C.F.R. § 300.517(a)(1)(i).         We review de novo whether a party

achieved a victory that rendered it "prevailing" for purposes of

the IDEA's fee-shifting provision.            See Smith v. Fitchburg Pub.

Sch., 401 F.3d 16, 21 (1st Cir. 2005).

            We note at the outset that, although the substantive

question underlying the fee award is moot for the reasons discussed

above, the fee-shifting issue is not.              "When plaintiffs clearly

succeeded in obtaining the relief sought before the district court

and   an   intervening   event     rendered   the    case   moot    on   appeal,

plaintiffs are still 'prevailing parties' for the purposes of

attorney's fees for the district court litigation."                Diffenderfer

v. Gomez-Colon, 587 F.3d 445, 454 (1st Cir. 2009); see also id. at

453 ("[I]n 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.").    The controversy over the fees incurred before the

district court is therefore still live.

            Westerly urges us to reverse the attorneys' fee award

because the ruling underlying it was based upon an erroneous

interpretation of the IDEA.        It is true that, ordinarily, when the

decision    underlying   a   fee    award     is    reversed,   the      formerly

prevailing party is no longer entitled to attorneys' fees.                  See,

e.g., Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100

F.3d 175, 195 (1st Cir. 1996).        However, when the predicate issue


                                    - 10 -
is moot, we cannot recoup jurisdiction over the merits by ruling

on a question about attorneys' fees.        See Lewis v. Cont'l Bank

Corp., 494 U.S. 472, 480 (1990) ("Th[e] interest in attorney's

fees is, of course, insufficient to create an Article III case or

controversy where none exists on the merits of the underlying

claim."); Ford v. Bender, 768 F.3d 15, 30 n.11 (1st Cir. 2014)

(noting "the wide agreement by appellate judges that they should

not undertake to delve into the details of a district court's

resolution of a controversy that has since become moot in order to

decide the ancillary question of fees" (quoting Ctr. for Biological

Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805–06 (9th Cir.

2008))); Diffenderfer, 587 F.3d at 452 ("[A] party's interest in

recouping attorney's fees does not create a stake in the outcome

sufficient    to   resuscitate   an   otherwise   moot   controversy.").

Therefore, in asking whether the parents prevailed, we look "only

to what relief the district court granted and not to whether the

case was rightly decided."       Diffenderfer, 587 F.3d at 453.      In

other words, we must turn a blind eye to the merits of the district

court's reading of the IDEA, and ask only whether the district

court's order rendered the parents "prevailing parties."

             To be a "prevailing party" under a federal fee-shifting

statute, a litigant must show both a "material alteration of the

legal relationship of the parties" and a "judicial imprimatur on

the change."    Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of


                                 - 11 -
Health & Human Res., 532 U.S. 598, 604, 605 (2001).1            "The party's

success cannot be a hollow victory; it must materially alter the

litigants' legal relationship by modifying one party's behavior in

a way that directly benefits the other."         Mr. R., 321 F.3d at 14.

In other words, the success must "achieve[] some of the benefit

the parties sought in bringing suit."          Hensley v. Eckerhart, 461

U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275,

278–79 (1st Cir. 1978)).      To decide whether a party prevailed,

therefore, we "make a qualitative inquiry into the import of the

result obtained," Mr. R., 321 F.3d at 15, comparing the results

achieved with the reasons for bringing suit.

           With that standard in mind, we consider what benefits

the parents sought in bringing suit. In the due process complaint,

the   parents   requested   that    the     hearing   officer   "[c]onclude

forthwith that M.S. is eligible for an Individual Education Plan

and protections under the Individual [sic] with Disabilities in

Education Act as a child with a disability requiring specialized

instruction and related services."          Similarly, in their complaint

to the district court -- setting aside the prayers for fees and




1 We generally interpret the term of art "prevailing party"
consistently across the federal fee-shifting statutes that use
that phrase. See Me. Sch. Admin. Dist. No. 35 v. Mr. R., 321 F.3d
9, 14 (1st Cir. 2003).


                                   - 12 -
general prayers for unspecified relief2 -- the parents sought the

following relief:

       "Preliminary and permanent injunctions directing Defendant to

        designate that the Defendant's actions denied the Student a

        free appropriate education under 20 U.S.C. § 1400 et seq."

       A declaration "[t]hat the child is a child with an educational

        disability eligible for specialized instruction under 20

        U.S.C. § 1400 et seq."

       "Remand   to   Defendant   in   order    to   develop   an   Individual

        Education Plan based on the evaluations completed to date; or

        alternatively, require WPS to an [sic] convene an IEP team

        meeting to design an appropriate IEP for the student based on

        the evaluations submitted by Plaintiffs."

       "A determination that Defendant's denial of the Plaintiffs'

        procedural     due   process    rights    were    not   substantially

        justified in law and had no reasonable basis in law or in

        fact."

             The district court's order garnered none of this relief.

What it did, instead, was to grant a request that the parents

raised for the first time in their summary judgment briefing for

"an expedited hearing on the merits [of their request for an IEP]


2 In addition to their case-specific prayers for relief, the
parents prayed for "[a]n award of any other damages or relief
available under applicable law" and "[s]uch other and further
relief as this Court deems just and proper."


                                    - 13 -
that will be based on the current available evidence."    So, we ask

whether this grant was a victory in the context of "the benefit

[the parents] sought in bringing suit."   Hensley, 461 U.S. at 433.

We think not.   The school administrators had already made clear

that the available information left them unconvinced that M.S.'s

condition warranted an IEP.    They were nevertheless willing to

gather more information, which may have cut either way.   Obtaining

an order forcing a decision without additional information was no

more than a Pyrrhic procedural victory that did not advance, and

may well have undercut, the goal of obtaining any success at all

on the merits of the parents' claims.3

                               III.

          For the reasons above, we dismiss as moot the challenge

to the district court's order compelling Westerly to determine

M.S.'s eligibility without first obtaining its own evaluations,

and we reverse the district court's award of attorneys' fees.   The

parties shall bear their own costs.




3 There is no dispute that the school's proposed evaluations were
relevant to the question of whether M.S. was eligible for an IEP.
We take no position on whether a parent or guardian may
successfully avoid plainly irrelevant evaluations, and if so,
whether such parties might be considered "prevailing" under the
IDEA's fee-shifting provision.


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