                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                                   PUBLISH
                                                                    April 16, 2007
                  UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                    Clerk of Court
                              TENTH CIRCUIT



 PO PE and K A TH LEEN M O SELEY,
 as parents and next friends of P.L.
 M OSELEY, a minor and for similarly
 situated students,                                   No. 06-2157

       Plaintiffs-Counter-Defendants -
       Appellants,

 v.

 B OA RD O F ED U CA TIO N O F
 ALBUQUERQUE PUBLIC
 SCH OOLS,

       Defendant-Counter-Claimant -
       Appellee,

 and

 PU BLIC ED U CA TIO N
 D EPA RTM EN T O F TH E STA TE OF
 N EW M EX IC O,

       Defendant-Counter-Claimant.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
                 FOR T HE D ISTRICT OF NEW M EXICO
                         (D.C. No. CIV-04-103)


Gail Stewart, (Steven Granberg, P.A., and Tara Ford, Pegasus Legal Services for
Children, on the brief), Albuquerque, New M exico, for Plaintiffs-Counter-
Defendants - Appellants.
M ichael L. Carrico, M odrall, Sperling, Roehl, Harris & Sisk, Albuquerque, New
M exico, for Defendant-Counter-Claimant - Appellee.


Before KELLY, M cCO NNELL, and HO LM ES, Circuit Judges.


KELLY, Circuit Judge.


      Plaintiff-Appellant P.L. M oseley appeals from the district court’s grant of

judgment in favor of the Albuquerque Public Schools (APS) on his claim under

the Individuals with Disabilities Education Act (IDEA) and its grant of summary

judgment in favor of APS on his claims under § 504 of the Rehabilitation Act of

1973 (§ 504) and Title II of the Americans with Disabilities Act (Title II). Our

jurisdiction arises under 28 U.S.C. § 1291, and we dismiss M r. M oseley’s appeal

because all of his claims are now moot.



                                   Background

      In 2003, when M r. M oseley was a student at D el Norte High School in

Albuquerque, his parents filed an ID EA due process request against A PS on his

behalf. The request also alleged disability discrimination under § 504. The

request w as based in part on the failure of APS to provide M r. M oseley with

assistive technology, specifically real-time captioning.

      M r. M oseley is deaf, has visual tracking problems, and suffers from

attention deficit disorder. After the IDEA due process hearing, the D ue Process

                                          -2-
Hearing Officer (DPH O) found in pertinent part that APS had denied M r. M oseley

a free appropriate public education (FAPE) because it failed to fully evaluate

w hether real-time captioning w as appropriate for M r. M oseley. The DPHO,

how ever, found no evidence of discrimination in violation of § 504. 1 An

Administrative A ppeals Officer (AAO) reversed the D PHO’s finding that M r.

M oseley required real-time captioning to receive a FAPE, but affirmed the

rejection of the § 504 claim.

      The IDEA guarantees that children with disabilities have access to “a free

and appropriate public education that emphasizes special education and related

services designed to meet their unique needs.” 20 U.S.C. § 1400(d). To meet this

goal, the IDEA provides federal funding to state and local agencies and requires

them to provide each child with an Individual Education Plan (IEP). See T.S. v.

Indep. Sch. Dist. No. 54, 265 F.3d 1090, 1091 (10th Cir. 2001), cert. denied, 535

U.S. 927 (2002). “An IEP is a written statement that includes such matters as the

child’s level of educational performance, annual goals, services to be provided to

the child and the like.” Id. (citing 20 U.S.C. § 1414(d)). A school district

satisfies its obligation to provide a FAPE “by providing personalized instruction

with sufficient support services to permit the child to benefit educationally from

that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982). The IDEA

      1
        The jurisdiction of the DPHO to consider § 504 claims concurrently with
IDEA claims has since been eliminated. See N.M . Admin. Code
§ 6.31.2.13(H)(1) & (I)(1).

                                        -3-
requires that a plaintiff exhaust two tiers of administrative review prior to filing

suit in state or federal court. See 20 U.S.C. § 1415 (f)-(g), (i)(2).

      Section 504 and Title II are anti-discrimination statutes. Plaintiffs

asserting violations of the IDEA often assert claims under § 504 and Title II as

well. Section 504 provides:

      No otherwise qualified individual with a disability in the United
      States, as defined in section 705(20) of this title, shall, solely by
      reason of her or his disability, be excluded from the participation in,
      be denied the benefits of, or be subjected to discrimination under any
      program or activity receiving Federal financial assistance. . . .

29 U.S.C. § 794(a). Title II provides:

      [N]o qualified individual with a disability shall, by reason of such
      disability, be excluded from participation in or be denied the benefits
      of the services, programs, or activities of a public entity, or be
      subjected to discrimination by any such entity.

42 U.S.C. § 12132.

      W hile attending Del Norte, M r. M oseley received special education

services because of his disability. M ost deaf students at Del Norte were placed in

segregated classes, but one third, including M r. M oseley, were placed in general

education classes for the entirety of the school day. As part of his IEP, M r.

M oseley received, among other services, supports, modifications, and

accommodations: access to written class notes, reduced assignments and

homework, extra time for oral and written responses, testing accommodations,

and the use of an interpreter.



                                          -4-
      Before M r. M oseley began high school, his family had requested that APS

consider providing some form of real-time captioning so that M r. M oseley could

access class lectures and discussions without the use of an interpreter. During

M r. M oseley’s sophomore year, APS provided real-time captioning to him for a

nine-week trial period in the English 10 class. The specific form of real-time

captioning provided to M r. M oseley was called Communication Access Real Time

Captioning (CART). 2

      To summarize the record, M r. M oseley scored slightly better when working

with an interpreter than he did when using CA RT. Consequently, the APS IEP

Team concluded that CART was not required for M r. M oseley because his

performance under CART did not significantly differ from his performance when

working with an interpreter and there was no evidence that the use of interpreters

was inappropriate. APS’s decision to discontinue CART prompted M r. M oseley

to file the IDEA due process request w hich demanded provision of CART for his

11th grade chemistry class, provision of captioned videos and films, further

teacher training and certification, provision of adequate transition services (to

college), provision of IEP modifications and accommodations, and provision of an

advanced sign language class.



      2
         CART requires an operator, similar to a court reporter, who keys
dialogue into a machine which then generates text that can be read. In this case,
the use of C ART in English 10 produced approximately 50 pages of hard
transcript per day.

                                         -5-
      The ID EA due process hearing was held on September 16-19 and October 3

of M r. M oseley’s 11th grade year (2003-2004). 3 The D PHO concluded that M r.

M oseley did require CART for a full semester, with an evaluation of the services

to follow, in order for him to have a FAPE as required by the IDEA . APS

appealed this decision to the second-tier of IDEA review, the AAO. The AAO

concluded that CART was not necessary for M r. M oseley to receive a FAPE. The

AAO did, however, find deficiencies in M r. M oseley’s IEP modifications and

accommodations and ordered several other remedies. It found for A PS on all

other matters.

      M r. M oseley’s parents then brought suit on his behalf in the district court

against APS and the New M exico Public Education Department (NM PED). They

asserted claims on behalf of M r. M oseley and also sought class certification on

behalf of all deaf students attending APS schools from 2002-2004 who were

entitled to special education services. The complaint alleged, inter alia, that APS

violated the IDEA, § 504, and Title II by failing to provide deaf students with a

number of technologies and services, including real-time captioning and college

transition services.

      NM PED moved to dismiss the class action claims, and that motion was



      3
          “W hen parents believe their child is not being provided a FAPE in the
least restrictive environment, they are entitled to an impartial due process hearing
. . . .” Ellenberg v. N.M . M ilitary Inst., – F.3d –, 2007 W L 678438, at *3 (10th
Cir. M arch 7, 2007).

                                        -6-
granted. Aplt. App. at 77-80, 83-84. The district court concluded that class

certification was inappropriate because only M r. M oseley had exhausted his

claims, and it would not be futile for the prospective class members to pursue

administrative remedies. 4 The district court then amended its order to reinstate

the class action claims against APS, as only the N M PED had moved to dismiss

those claims. Doc. 60 at 5-6 (M emo. Op. & Order dated 11/12/2004). The

district court later considered APS’s motion for judgment on M r. M oseley’s

individual IDEA claim and its motion for summary judgment on M r. M oseley’s §

504 and Title II claims. Applying the standard for a FAPE set out in Rowley, 458

U.S. at 188-89, the district court found that the services provided to M r. M oseley

were sufficient under the IDEA. Relying on Urban v. Jefferson County School

District, 89 F.3d 720, 727-28 (10th Cir. 1996), the district court then granted

summary judgment for the § 504 and Title II claims because it determined that

denial of the IDEA claim precluded the § 504 and Title II claims as all three

claims shared the same substantive standard and the same set of facts gave rise to

each. 5


          4
        Judicial review of an IDEA claim is generally permitted only after a
claimant exhausts state administrative remedies. See 20 U.S.C. § 1415(i)(2).
          5
         W e recognize that the district court’s disposition of the § 504 and Title II
claims is arguably in conflict with our holding in Ellenberg that it was error for
the district court to dismiss a plaintiff’s § 504 and Title II claims because the
plaintiff failed to properly exhaust his IDEA administrative remedies. 2007 W L
678438, at *11-12. In Ellenberg, the plaintiff alleged facts sufficient to prove a
“pure discrimination claim[].” Id. at *12. In this case, M r. M oseley seems to

                                         -7-
      O n appeal, M r. M oseley argues that the district court erred in its review:

(1) by failing to consider additional evidence, imposing a requirement for

subsequent exhaustion on CART, and deferring to the AAO on factual issues

dependent on credibility, (2) by improperly dismissing M r. M oseley’s § 504 and

Title II claims by conflating their substantive standards with that of the IDEA,

and (3) by concluding, on the merits, that M r. M oseley received a FAPE and was

not discriminated against under § 504 and Title II.



                                     Discussion

      Before this appeal was filed, M r. M oseley graduated from high school. W e

ordered supplemental briefing to determine w hether this fact rendered M r.

M oseley’s claims moot. In the complaint, M r. M oseley asked that the district

court reverse the decision of the AAO and declare APS to be in violation of the

IDEA, § 504, and Title II. He also asked that the district court enjoin APS from

further discrimination against him because of his deafness, that it award him

attorney’s fees and costs, and that it grant any other appropriate relief. W hile the

complaint requested an aw ard of compensatory damages for class members, M r.

M oseley never requested compensatory damages as an individual, nor did he seek




base his § 504 and Title II claims on entirely the same facts as his ID EA claim.
Nevertheless, because M r. M oseley’s claims are moot, we need not decide the
import of Ellenberg in this case.

                                         -8-
to amend the complaint.

      M r. M oseley did not contest his graduation, 6 so his request to reverse the

decision of the AAO and to declare APS to be in violation of the IDEA, § 504,

and Title II will have no effect on the present or future actions of either party.

See T.S., 265 F.3d at 1092 (“Once a student has graduated, he is no longer

entitled to a FAPE; thus any claim that a FAPE was deficient becomes moot upon

a valid graduation.”); Bd. of Educ. v. Nathan R., 199 F.3d 377, 381 (7th Cir.

2000) (same). M r. M oseley’s graduation also moots his request for an injunction

against APS, as plaintiffs “seeking prospective relief must show more than past

harm or speculative future harm.” Lippoldt v. Cole, 468 F.3d 1204, 1217 (10th

Cir. 2006). Likewise, M r. M oseley’s general request for other appropriate relief

is moot. While M r. M oseley’s counsel tried mightily at oral argument to



      6
         “The IDEA requires that school districts educate disabled students to
tw enty-one years of age, unless doing so is inconsistent w ith state law.”
Birmingham v. Omaha Sch. Dist., 220 F.3d 850, 853 (8th Cir. 2000) (citing 20
U.S.C. § 1412(a)). Nevertheless, a disabled student may graduate earlier than the
age of twenty-one if certain procedural safeguards are followed. See id. W hen a
school district intends to graduate a student before the student has reached the age
of twenty-one, it must give prior written notice to the student’s parents regarding
this pending change in “educational placement.” 20 U.S.C. § 1415(b)(3); 34
C.F.R. § 300.102(a)(3)(iii). The student’s parents may then file a “complaint”
with the school, contesting the graduation. See id. § 1415(b)(6)(A). The filing of
such a complaint entitles the parents to an “impartial due process hearing” at the
administrative level, where they may present arguments as to why continued
education is necessary for the student to receive a FAPE. See id. § 1415(f)(1)(A).
Following exhaustion of an administrative appeal, see id. § 1415(g)(1), the
parents may then challenge the proposed graduation by bringing an action in
federal district court, see id. § 1415(i)(2).

                                         -9-
convince us that there was some effective equitable remedy that could be

fashioned, counsel could not articulate what form such a remedy might take. W e

struggle to see what equitable remedy this court could impose, given that M r.

M oseley has already graduated from high school and cannot return to Del Norte.

      Based on the facts, the only effective relief M r. M oseley could claim comes

in the form of compensatory damages. W hile most circuits hold that the IDEA

does not permit compensatory damages, 7 see Diaz-Fonseca v. Puerto Rico, 451

F.3d 13, 28 (1st Cir. 2006); Gean v. Hattaw ay, 330 F.3d 758, 774 (6th Cir. 2003);

Sellers v. Sch. Bd., 141 F.3d 524, 526-27 (4th Cir. 1998); Charlie F. v. Bd. of

Educ., 98 F.3d 989, 991 (7th Cir. 1996); Heidemann v. Rother, 84 F.3d 1021,

1033 (8th Cir. 1996), a plaintiff may recover compensatory damages under § 504

and Title II in certain circumstances, see Powers v. M JB Acquisition Corp., 184

F.3d 1147, 1153 (10th Cir. 1999) (holding that compensatory damages are

available under § 504 upon a showing of intentional discrimination); Davoll v.

W ebb, 194 F.3d 1116, 1141 (10th Cir. 1999) (suggesting, but not explicitly

holding, that proof of intentional discrimination is required for compensatory

damages under Title II). Thus, M r. M oseley’s § 504 and Title II claims would be




      7
        This court has yet to decide w hether the ID EA permits compensatory
damages. See Cudjoe v. Indep. Sch. Dist. No. 12, 297 F.3d 1058, 1067 n.10 (10th
Cir. 2002). W hile we see no reason to depart from the majority view, such a
determination is not necessary in this case because M r. M oseley never sought
compensatory damages as an individual.

                                       - 10 -
justiciable if he had sought compensatory damages. See Taxpayers for Animas-

La Plata Referendum v. Animas-La Plata W ater Conservancy Dist., 739 F.2d

1472, 1479 (10th Cir. 1984) (“[B]y definition claims for past damages cannot be

moot.”).

      Nevertheless, M r. M oseley never prayed for compensatory damages. The

complaint did seek compensatory damages for class members, but not for M r.

M oseley individually. Regardless, the class action claims against the NM PED

were dismissed on motion, and the final order in this case effectively dismissed

the class action claims against A PS by granting judgment in favor of defendants

on all remaining claims contained in the complaint. Aplt. App. at 306. No appeal

was taken from the class action rulings and no evidence suggesting compensatory

damages ever surfaced in the district court.

      The IDEA does entitle plaintiffs to claim monetary awards in the form of

reimbursement for services that a school wrongfully failed to provide, see Sch.

Comm. v. Dep’t of Educ., 471 U.S. 359, 370-71 (1985), and may also provide

plaintiffs with the remedy of compensatory education services when they have

been denied a FAPE, see Urban, 89 F.3d at 727 (noting that this circuit has yet to

decide whether compensatory education services are available under the IDEA to

remedy denial of a FAPE). Nevertheless, as noted above, M r. M oseley failed to

request either reimbursement or compensatory education services in his

complaint. The tenor of the entire complaint and proceedings in this action is for

                                        - 11 -
injunctive relief.

      Finally, because the underlying substantive claims are moot, M r. M oseley

cannot recover attorney’s fees and costs. See Nathan R., 199 F.3d at 381. In

short, M r. M oseley seeks no effective form of relief. M r. M oseley argues that the

ID EA itself says nothing about a student’s claims terminating upon graduation.

This may be true, but if M r. M oseley’s claims present no live controversy, they

are not justiciable under the Constitution. See Lippoldt, 468 F.3d at 1216; see

also M atos ex rel. M atos v. Clinton Sch. Dist., 367 F.3d 68, 72 (1st Cir. 2004).

W hile M r. M oseley insists that his claims present a live controversy because the

IDEA allows for reimbursement and compensatory education services, M r.

M oseley never requested such relief, nor can he articulate any equitable relief that

would present a live controversy. W e are obliged, under our independent duty to

examine our own jurisdiction, see Airport Neighbors Alliance, Inc. v. United

States, 90 F.3d 426, 428 (10th Cir. 1996), to dismiss his appeal as moot.




                                         - 12 -
