     Case: 09-50332     Document: 00511041099          Page: 1    Date Filed: 03/03/2010




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

                                                  FILED
                                                                            March 3, 2010

                                       No. 09-50332                    Charles R. Fulbruge III
                                                                               Clerk

A.O., as next friend M.W.,

                                                   Plaintiff - Appellee
v.

EL PASO INDEPENDENT SCHOOL DISTRICT

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:07-CV-243


Before SMITH, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        El Paso Independent School District appeals the district court’s denial of
its Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and the
entry of judgment in favor of A.O. as next friend of M.W. We affirm.
        M.W. is a student with special educational needs in the El Paso
Independent School District (“EPISD”). On behalf of M.W., A.O. filed a request
for a special education due process hearing with the Texas Education Agency,
alleging that the Individualized Education Plan (“IEP”) created for M.W. was

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                      No. 09-50332

deficient and that, because of its deficiencies, M.W. had been denied her right to
a Free and Appropriate Public Education under the Individuals with Disabilities
Education Act (“IDEA”). As relief, A.O. sought an order directing EPISD to
convene an Admission, Review, and Dismissal committee to develop a new IEP,
and requested an award of reasonable attorney’s fees.
       Before the due process hearing took place, EPISD offered to settle the case.
It promised to convene the ARD committee and develop a new IEP for M.W., and
offered to compensate A.O. for $3,000 in attorney’s fees.1 At a pre-hearing
conference, EPISD again offered this resolution, but A.O. did not accept. The
hearing officer subsequently granted EPISD’s motion to dismiss the case as moot
because EPISD had offered in full the relief requested by A.O.
       A.O. then filed a complaint in the Western District of Texas, alleging that
the hearing officer improperly denied her a due process hearing under the IDEA.
EPISD responded by, inter alia, filing a Rule 12(b)(1) motion arguing that the
district court lacked subject matter jurisdiction.             According to EPISD, its
settlement offer rendered the case moot and deprived A.O. of standing. It
further contended that the case was not ripe and that A.O. failed to exhaust
administrative remedies. The district court found that it had subject matter
jurisdiction and remanded the case for a due process hearing. EPISD timely
filed the instant appeal of the denial of its 12(b)(1) motion.2
       This appeal presents nearly identical justiciability issues as another case
recently decided by this court. See El Paso Indep. Sch. Dist. v. Richard R., 591
F.3d 417 (5th Cir. 2009). In Richard R., a child with special educational needs



       1
         EPISD also stated that it would consider documentation in support of a larger
attorney’s fee award.
       2
        We review the district court’s denial of a Rule 12(b)(1) motion de novo, applying the
same standard as the district court. Ramming v. United States, 281 F.3d 158, 161 (5th Cir.
2001).

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                                          No. 09-50332

had obtained a favorable judgment in a state due process hearing and sued
EPISD for attorney’s fees under the IDEA. As here, EPISD had offered the
requested relief in a settlement before the due process hearing but its offer was
rejected.     On appeal, EPISD argued that the plaintiff “did not present a
justiciable case or controversy to either the state due process hearing officer or
the district court” because it offered the plaintiff all requested relief before
litigation. Id. at 423 n.5. The court summarily rejected EPISD’s justiciability
arguments in a footnote.3
       Like EPISD’s offer to A.O., the settlement in Richard R. offered the
plaintiff “all requested educational relief and reasonable attorney’s fees, leaving
absolutely no need to continue litigating.” Id. at 430 (emphasis omitted). The
court nonetheless declined to dismiss the case on justiciability grounds. Instead,
the court held that the plaintiff’s decision to decline the school district’s
settlement offer of all requested relief precluded an award of attorney’s fees
under the IDEA because the plaintiff was not “substantially justified” in
rejecting such an offer and because doing so unnecessarily protracted litigation.
Id. at 425–430.4 Considering A.O.’s rejection of EPISD’s settlement offer, she


       3
         In its two-sentence treatment of these arguments, the court relied on the fact that
EPISD would not consent to an “agreed order” memorializing the terms of the settlement offer
because EPISD considered there to be “genuine issues of fact and law in dispute” between the
parties. Richard R., 591 F.3d at 423 n.5. A.O.’s attorney proposed an “agreed order” here as
well, and EPISD apparently never consented.
       4
          That such a settlement offer does not end the underlying case or controversy is
supported by the IDEA’s text. Title 20, United States Code, section 1415(i)(3)(D)(i), governing
awards of attorney’s fees to prevailing parties in IDEA litigation, provides that “fees may not
be awarded . . . in any action . . . for services performed subsequent to the time of a written
offer of settlement . . . [if] the court . . . finds that the relief finally obtained . . . is not more
favorable . . . than the offer of settlement.” In interpreting this provision in Richard R., the
court stated that this “provision tacitly assumes that a party may reject such an offer and
nevertheless attain prevailing party status.” 591 F.3d at 424. The IDEA itself therefore
presumes that a controversy will remain justiciable even though a school district offers full
relief in a settlement offer.


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                                  No. 09-50332

would presumably face the same difficulties if she tries to recover her attorney’s
fees. EPISD has not cited any case, however, convincing the court that its offer
deprived either the hearing officer or the district court of subject matter
jurisdiction.
      The judgment of the district court is AFFIRMED.




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