     Case: 09-50436     Document: 00511046105          Page: 1    Date Filed: 03/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            March 9, 2010

                                     No. 09-50436                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



M.L. AS NEXT FRIEND OF A.L.,


                                                   Plaintiff - Appellant
v.

EL PASO INDEPENDENT SCHOOL DISTRICT,


                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 3:08-cv-00076-KC


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant A.L., through his mother M.L., appeals the district court’s
dismissal of his complaint under the Individuals with Disabilities Education Act
(“IDEA”) as moot and the district court’s order allowing the El Paso Independent
School District (“EPISD”) to reevaluate him without his mother’s consent. For
the following reasons, we AFFIRM.

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                 I. FACTUAL AND PROCEDURAL HISTORY
       Appellant is a student in the EPISD where he was identified as a student
with a speech impairment. Because of his impairment, an Admission, Review,
and Dismissal Committee (“ARD Committee”) determined that Appellant
required, among other things, sixty minutes of speech-language pathology
services a week.1
       In 2006, Appellant’s mother, M.L., received a letter which informed her
that the school district was experiencing a shortage of qualified speech
therapists and that, as a consequence, some of Appellant’s speech therapy
sessions had been missed. The letter also stated that EPISD would convene an
ARD Committee to determine the frequency and duration of any compensatory
services required for the missed sessions. EPISD admits that no such ARD
Committee meeting was held after this letter and that Appellant has not been
provided with such services.
       On October 5, 2007, an ARD Committee met to conduct its annual review
of Appellant’s individual educational program, as well as Appellant’s progress
under that program. Appellant’s individual educational program was tailored
to his specific speech needs (“speech-IEP”). After reviewing Appellant’s progress,
the ARD Committee determined that Appellant was no longer speech disabled
and, therefore, no longer eligible for special education services. M.L. disagreed
with the committee’s determination and requested an additional evaluation of
Appellant. The committee agreed and recessed the meeting until October 22,



       1
        The free appropriate public education that a disabled student is entitled to receive
under the IDEA must be tailored to the student’s need through an individual educational
program, which is “a written statement prepared at a meeting attended by a qualified
representative of the school district, a teacher, the child’s parents or guardians, and, when
appropriate, the child himself.” Cypress-Fairbanks Indep. Sch. Dist. v. Michael F., 118 F.3d
245, 247 (5th Cir. 1997). “In Texas, the persons charged with preparing an [individual
educational program] are known collectively as an Admissions, Review and Dismissal
Committee.” Id.

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2007. M.L. did not raise the issue of compensatory speech services at this
meeting.
      The ARD Committee reconvened on November 1, 2007, after canceling the
October 22 meeting due to the unavailability of Appellant’s counsel. Although
Appellant’s counsel was aware of the meeting, neither M.L. nor Appellant’s
counsel attended the meeting.     The ARD Committee reviewed its previous
decision and again concluded that Appellant was no longer speech disabled and
that he no longer needed speech therapy services. The committee also concluded
that EPISD should conduct an additional full individual evaluation (“FIE”) of
Appellant in order to determine whether Appellant suffered from Attention
Deficit Hyperactivity Disorder (“ADHD”). M.L. refused to give her consent to the
additional FIE, and, because of her refusal, EPISD was barred by the IDEA from
conducting the additional evaluation.
      Although the ARD Committee had postponed its meeting until November
1 at the request of Appellant’s counsel, Appellant, through his mother M.L., did
not wait for the November 1 meeting to occur before initiating administrative
proceedings against EPISD. On October 10, 2007, Appellant filed a due process
compliant (“Due Process Complaint”) with the Texas Education Agency (“TEA”),
and the TEA assigned a Special Education Hearing Officer (“Hearing Officer”)
to hear Appellant’s complaint. After receiving Appellant’s complaint, EPISD
attempted to settle with Appellant by making several unsuccessful offers, which
included an offer to provide Appellant with one hour of compensatory services
for each hour he missed.     Appellant did not accept any of EPISD’s offers.
Asserting that its settlement offers had provided Appellant with all the relief he
requested, EPISD moved to dismiss Appellant’s Due Process Complaint as moot.
EPISD also filed a counterclaim, seeking permission to reevaluate Appellant for
ADHD without M.L.’s consent. The Hearing Officer granted EPISD’s motion to
dismiss, finding that EPISD’s settlement offers had mooted Appellant’s

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complaint. The Hearing Officer denied EPISD’s counterclaim, holding that 20
U.S.C. § 1414(a)(2)(B)(i) prohibited any reevaluation of Appellant because the
school district had already evaluated Appellant once in 2007 and M.L. refused
to consent to an additional evaluation.
        Aggrieved by the Hearing Officer’s dismissal, Appellant filed a complaint
in the district court, requesting reinstatement of his Due Process Complaint, and
EPISD filed a counterclaim, seeking permission to reevaluate Appellant without
M.L.’s consent.2 EPISD again asserted that Appellant’s complaint was moot;
however, instead of solely relying on its settlement offers, EPISD also argued
that Appellant’s complaint was mooted by the fact that Appellant was no longer
speech disabled.      The district court agreed with EPISD’s speech-disability
argument and dismissed Appellant’s complaint as moot. EPISD also moved for
summary judgment on its counterclaim, and the district court granted its
motion. This appeal followed.
                                    II. DISCUSSION
        Appellant asserts that the district court erred in dismissing his complaint
as moot and in granting EPISD’s motion for summary judgment on its
counterclaim. Finding no reversible error, we AFFIRM.
A.      Appellant’s Complaint
        The district court found that Appellant’s complaint was moot because he
was no longer speech disabled.3 Whether a case is moot is a question of law that

        2
          EPISD also brought a Third-Party Complaint that sought attorney’s fees from
Appellant’s counsel. Finding that Appellant’s counsel continued to litigate Appellant’s claims
after they became frivolous, unreasonable, and without foundation, the district court awarded
EPISD attorney’s fees under 20 U.S.C. § 1415(i)(3)(B)(i)(II). The district court’s award of
attorney’s fees was separately appealed and docketed under Case No. 09-50841. It is not before
us here.
        3
           The district court did not decide whether EPISD’s settlement offers mooted
Appellant’s complaint. Because we find that the district court did not err in dismissing
Appellant’s complaint based on the fact that he was no longer speech disabled, we do not reach
the issue of whether EPISD’s settlement offers were sufficient to moot Appellant’s complaint.

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we review de novo. Bayou Liberty Ass’n v. U.S. Army Corps of Eng’rs, 217 F.3d
393, 396 (5th Cir. 2000) (citing Harris v. City of Houston, 151 F.3d 186, 189 (5th
Cir. 1989)). We find that the district court did not err in dismissing Appellant’s
complaint as moot.4
       Appellant argues that the district court erred in dismissing his complaint
because he did not have an opportunity to contest whether he was speech
disabled. This contention is erroneous because Appellant had the opportunity
to contest this fact in the district court; instead of contesting it, Appellant simply
remained silent—he offered no argument in rebuttal nor any evidence to
contradict EPISD’s assertion that he was no longer speech disabled.5
       Appellant also argues that the district court did not have jurisdiction to
consider whether he was speech disabled because the issue was not raised and
litigated before the Hearing Officer. The district court considered the issue of
Appellant’s speech disability because Appellant’s case would be moot if he was
not speech disabled. The question of mootness is a jurisdictional matter, Bailey



       4
          Appellant’s complaint in the district court sought reinstatement of his Due Process
Complaint, which requested that EPISD provide the following forms of relief: (1) notice to M.L.
of any changes to Appellant’s speech-IEP; (2) speech services as required by Appellant’s
speech-IEP; (3) compensatory speech services; and (2) an ARD committee meeting to develop
goals for Appellant’s compensatory speech therapy services. Because Appellant is no longer
speech disabled, his speech-IEP is no longer applicable and he no longer requires any speech
therapy services; therefore, Appellant’s claims are moot. See Bd. of Educ. of Downers Grove
Grade Sch. Dist. No. 58 v. Steven L., 89 F.3d 464, 467-68 (7th Cir. 1999) (finding that a
complaint regarding a student’s IEP was mooted by the fact that the IEP was no longer
applicable to the student). The request for “compensatory” speech therapy for an impediment
that no longer exists does not present a “live” case or controversy.
       5
          In his brief, Appellant argues that he continues to be classified as speech impaired
and continues to receive speech therapy pursuant to the IDEA’s “stay put” provision, 20 U.S.C.
§ 1415(j) (stating that “during the pendency of any proceedings conducted [under the IDEA,]
the child shall remain in the then-current educational placement”). Appellant asserts that
these facts show that his complaint is not moot. These facts, however, just show that EPISD
is abiding by the IDEA’s requirement that Appellant remain in his then-current educational
placement during the pendency of this litigation; they do not show that the district court erred
in finding that Appellant was no longer speech disabled.

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v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987), and “a federal court always
has jurisdiction to determine its own jurisdiction,” United States v. Ruiz, 536
U.S. 622, 628 (2002). Because the question of mootness is jurisdictional, it can
be raised at any time by any party or by the court sua sponte. See Bailey, 821
F.2d at 278. Accordingly, even in IDEA cases, a party may raise facts that
render a case moot at anytime, even if those facts were not raised or litigated in
the administrative proceedings that preceded litigation in federal court. See
Honig v. Doe, 484 U.S. 305, 318 (1988) (finding that a student’s claim for relief
under the Education of the Handicapped Act, which is now the IDEA, was
mooted by a fact that was raised for the first time on appeal); Pamela R. ex rel.
Thomas R.W. v. Mass. Dep’t of Educ., 130 F.3d 477, 479 (1st Cir. 1997);
Malkentzos v. DeBuono, 102 F.3d 50, 55 (2d Cir. 1996). Therefore, the district
court had jurisdiction to consider whether Appellant was speech disabled
because that fact was determinative of the court’s own jurisdiction. See Ruiz,
536 U.S. at 628.
        Because Appellant has failed to raise any grounds for reversing the district
court’s dismissal of his complaint, we find that the district court did not err in
dismissing Appellant’s complaint as moot.6
B.      EPISD’s Counterclaim
        Appellant argues that the district court did not have jurisdiction to hear
EPISD’s counterclaim because the counterclaim was mooted by the fact that 20
U.S.C. § 1414(a)(2)(B)(i) no longer applied as bar to any reevaluation. Section
1414(a)(2)(B)(i) prohibits school districts from reevaluating students “more
frequently than once a year, unless the parent” agrees otherwise. At the time



        6
          In his brief, Appellant did not argue that his claims were saved by any exception to
the doctrine of mootness. As a consequence, all such arguments are waived. See Jason D.W.
ex rel. Douglas W. v. Houston Indep. Sch. Dist., 158 F.3d 205, 210 n.4 (5th Cir. 1998)
(“[F]ailure to provide any legal or factual analysis of an issue . . . waives that issue.”).

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the district court made its decision, more than a year had passed since
Appellant’s last evaluation, which means § 1414(a)(2)(B)(i) no longer applied as
a bar to EPISD’s requested reevaluation. Because § 1414(a)(2)(B)(i) no longer
applied, Appellant asserts that EPISD did not need M.L.’s consent to conduct its
reevaluation and, therefore, EPISD’s counterclaim was moot.                      Appellant’s
assertion is incorrect. Under the IDEA, before any reevaluation of a student can
occur, a “local education agency [must] obtain informed parental consent.” 7 20
U.S.C. § 1414(c)(3). If a parent refuses to give consent, a school district must
obtain an order allowing it to conduct the evaluation without parental consent.
Shelby S. ex rel. Kathleen T. v. Conroe Indep. Sch. Dist., 454 F.3d 450, 454-55
(5th Cir. 2006). Therefore, given M.L.’s continued refusal to consent to any
reevaluation of Appellant, the fact that § 1414(a)(2)(B)(i) no longer applied did
not moot the school district’s counterclaim because the school district was still
barred by § 1414(c)(3) from reevaluating Appellant without an administrative
or judicial order.       Accordingly, we conclude that the district court had
jurisdiction over EPISD’s counterclaim because the claim was not mooted by §
1414(a)(2)(B)(i)’s inapplicability. M.L. makes no challenge to the substance of
the court’s order requiring reevaluation.
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM.




       7
         The only exception to this general rule, which is inapplicable to the present dispute,
is found in 20 U.S.C. § 1414(c)(3), which states, “informed parental consent need not be
obtained if the local educational agency can demonstrate that it had taken reasonable
measures to obtain such consent and the child’s parent has failed to respond.”

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