       Third District Court of Appeal
                                State of Florida

                             Opinion filed June 1, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                               No. 3D15-2920
              Lower Tribunal Nos. 14-5679E; 14-5669E; 14-5668E
                             ________________


          The School Board of Miami-Dade County, Florida,
                                     Petitioner,

                                         vs.

                         C.A.F., S.R.F., and J.H.F.,
                                   Respondents.



      A Case of Original Jurisdiction – Prohibition.

       Walter J. Harvey, School Board Attorney, and Mary C. Lawson, Assistant
School Board Attorney; Cole, Scott & Kissane, P.A., and Scott A. Cole, Edward S.
Polk, and Alexandra Valdes, for petitioner.

      Making School Work, P.L., and Allison Hertog; Langer Law, P.A., and
Stephanie Langer and Kristina Tilson, for respondents.


Before SALTER, LOGUE, and SCALES, JJ.

      LOGUE, J.
      The School Board of Miami-Dade County seeks a writ of prohibition or,

alternatively, a writ of certiorari to prevent the administrative law judge from

awarding attorneys’ fees. For the following reasons, we dismiss the petition.

                                  BACKGROUND

      The Individual with Disabilities Education Act (“IDEA”) and companion

Florida Statutes provide the backdrop for this case. The IDEA is a comprehensive

federal statutory scheme that governs the manner in which states provide special

education and related services to children with disabilities. See 20 U.S.C. § 1400 et

seq. It essentially creates a federal grant program. § 1400(d). To qualify for such

funding, participating states must provide a “free appropriate public education” to

children with disabilities. § 1412(a)(1).

      Frequently described as the model of cooperative federalism, the IDEA

“leaves to the States the primary responsibility for developing and executing

educational programs for handicapped children, [but] imposes significant

requirements to be followed in the discharge of that responsibility.” Schaffer ex

rel. Schaffer v. Weast, 546 U.S. 49, 52 (2005) (citation omitted). One such

requirement is cooperation and reporting between state and federal educational

authorities regarding “policies and procedures” that will effectively meet the

IDEA’s conditions. 20 U.S.C. § 1412(a); Schaffer, 546 U.S. at 52. Participating

states must certify to the Secretary of Education that they have such policies and



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procedures. 20 U.S.C. § 1412(a); Schaffer, 546 U.S. at 52. “State educational

agencies, in turn, must ensure that local schools and teachers are meeting the

State’s educational standard.” Id. A local education agency, such as a school board,

can receive IDEA funds if it certifies to a state educational agency that it is acting

in accordance with the state’s policies and procedures. 20 U.S.C. § 1413(a)(1);

Schaffer, 546 U.S. at 52-53.

      The core of the IDEA is the collaboration it establishes between parents and

schools. Id. at 53. “The central vehicle for this collaboration is the [individualized

education program] process.” Id. This process requires educational authorities to

identify and evaluate children with disabilities, develop an individualized

education program for each child, and review every individualized education

program at least once a year. Id. Parents play a crucial role in this process. Id. at

53-54 (summarizing the role of parents). In this regard, the IDEA provides parents

with certain rights. If parents believe that an individualized education program is

not appropriate, they may seek an administrative “impartial due process hearing.”

20 U.S.C. § 1415(f); Schaffer, 549 U.S. at 53.

      In Florida, these due process hearings must be conducted by an

administrative law judge (“ALJ”) of the Division of Administrative Hearings. §

1003.57(1)(c), Fla. Stat. (2014) (“The hearing must be conducted by an

administrative law judge from the Division of Administrative Hearings pursuant to



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a contract between the Department of Education and the Division of

Administrative Hearings.”). The ALJ conducts these hearings pursuant to section

1003.57, Florida Statutes, and rule 6A–6.03311 of the Florida Administrative

Code. Due process hearings are not subject to all of the requirements in the Florida

Administrative Procedure Act because “[s]uch hearings are exempt from ss.

120.569, 120.57, and 286.011, except to the extent that the State Board of

Education adopts rules establishing other procedures.” § 1003.57(1)(c), Fla. Stat.

Following a due process hearing, an aggrieved party may bring a civil action in a

court of competent jurisdiction to challenge the decision of the ALJ. Id.; Fla.

Admin. Code R. 6A–6.03311 (9)(w).

      The parents of the Respondents, who are brothers and former students of the

Miami-Dade County Public School System, brought three administrative due

process cases on behalf of their children. They alleged that the School Board failed

to implement the individualized education program for each child. The ALJ agreed

and entered detailed “final orders” explaining why. In those same orders, the ALJ

indicated that the Respondents were entitled to attorneys’ fees as the prevailing

parties. The orders, however, required the Respondents to file motions for

attorneys’ fees with documents attached, such as time sheets and affidavits,

supporting an award of fees. The School Board moved for reconsideration, which

was denied. After the Respondents filed motions for attorneys’ fees pursuant to



                                         4
rule 6A-6.03311(9)(x), the ALJ issued orders reopening the cases. The orders

provided, among other things, that the School Board could raise any defense to the

motions for attorneys’ fees, including “whether it challenges the jurisdiction of the

Division of Administrative Hearings to award attorney’s fees pursuant to rule 6A-

6.03311(9)(x).” This petition followed.

                                     ANALYSIS

        The School Board seeks to prevent the ALJ from awarding attorneys’ fees. It

argues that the ALJ is acting in excess of its jurisdiction to hear IDEA disputes by

awarding attorneys’ fees under rule 6A-6.03311(9)(x).1

1   Rule 6A–6.03311(9)(x) provides, in pertinent part:

        In any due process hearing or subsequent judicial proceeding brought
        under this rule, the court, in its discretion, may award reasonable
        attorneys’ fees as part of the costs to . . . The prevailing party who is
        the parent of a student with a disability . . . .

(emphasis added).

The School Board argues that rule 6A–6.03311(9)(x) cannot provide the ALJ with
jurisdiction to award attorneys’ fees, but rather only the IDEA and companion
Florida Statutes can do so. Because, according to the School Board, neither the
IDEA nor companion Florida Statutes provide the ALJ with such jurisdiction, the
ALJ acts in excess of its jurisdiction to hear IDEA disputes when it seeks to award
attorneys’ fees. In any event, the School Board argues that the use of the word
“court” in rule 6A–6.03311(9)(x) should be interpreted to mean only a federal
district or state circuit court can award attorneys’ fees.

The Respondents disagree. They argue that rule 6A–6.03311(9)(x) permits the
award of attorneys’ fees in due process hearings, and because the ALJ is the only
tribunal who can conduct such hearings, “court” should be interpreted to include
the ALJ. According to the Respondents, to hold otherwise would render rule 6A–

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      We begin by addressing the School Board’s request for a writ of prohibition.

“Prohibition may only be granted when it is shown that a lower court is without

jurisdiction or attempting to act in excess of jurisdiction.” Roberts v. Brown, 43

So. 3d 673, 677-78 (Fla. 2010) (citation omitted). It is a preventative remedy. Id. at

678. In other words, the purpose of a writ of prohibition “is to prevent the doing of

something, not to compel the undoing of something already done.” Id. (citation

omitted). Because the School Board argues that the ALJ is acting in excess of its

jurisdiction, and seeks to prevent the ALJ from awarding attorneys’ fees, it

contends that a writ of prohibition is proper.

      On this record, however, prohibition is not available. It is well-settled law

that prohibition may not be used to divest a lower tribunal of jurisdiction to

determine whether it has jurisdiction over a particular matter. Mandico v. Taos

Constr., Inc., 605 So. 2d 850, 854 (Fla. 1992); Bd. of Cty. Comm’rs of Metro.

Dade Cty. v. Wood, 662 So. 2d 417, 418 (Fla. 3d DCA 1995). The orders

reopening the cases, from which this petition arises, demonstrate that the ALJ has

not determined whether it has jurisdiction to award attorneys’ fees. Those orders

specifically allow the School Board to challenge the ALJ’s jurisdiction to award

attorneys’ fees. For this reason, this petition for a writ of prohibition is premature.

See English v. McCrary, 348 So. 2d 293, 296 (Fla. 1977) (“[Prohibition] is meant

6.03311(9)(x) nonsensical. Because we dismiss this petition, we expressly decline
to reach these issues.

                                          6
to be very narrow in scope, to be employed with great caution and utilized only in

emergencies.”).

      We also dismiss this petition to the extent the School Board seeks a writ of

certiorari to quash the orders reopening the cases. To support a writ of certiorari,

the petitioner must demonstrate that the challenged non-final order (1) departs

from the essential requirements of law, (2) results in material injury for the

remainder of the case, and (3) such injury is incapable of correction on

postjudgment appeal. Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.

3d 344, 351 (Fla. 2012). The last two elements are referred to as irreparable harm,

the establishment of which is a condition precedent to invoking certiorari

jurisdiction. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d

712, 721 (Fla. 2012); Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804,

807 (Fla. 3d DCA 2014).

      The School Board claims it will be irreparably harmed by the orders

reopening the cases because it “will be required to expend unrecoverable public

funds on an attorneys’ fees hearing that does not comport with the essential

requirements of the law.” It is well-established law, however, that “the

continuation of litigation and any ensuing costs, time, and effort in defending such

litigation does not constitute irreparable harm.” Rodriguez v. Miami-Dade Cty.,




                                         7
117 So. 3d 400, 405 (Fla. 2013). Thus, the use of certiorari review is improper in

this circumstance.

      Petition dismissed.




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