## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 27 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

D.L., individually and as next friend of J.L., a minor; ESTATE OF R.L.; and P.P., Plaintiffs - Appellants,

v. No. 03-3268 THE UNIFIED SCHOOL DISTRICT NO. 497; DR. DOUGLAS EICHER, School Administrator, individually and in his official capacity,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 00-CV-2439-CM)

Gregory P. Goheen of McAnany, Van Cleve & Phillips, P.A., Kansas City, Kansas, for Plaintiffs - Appellants. W. Joseph Hatley of Lathrop & Gage, L.C., Overland Park, Kansas, for Defendants - Appellees.

Before KELLY , HENRY , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.-2-

The suit before us on appeal arises out of a disput e concerning the eligibility of J.L. and R.L. (the children) for spe cial-education services provided by Unified School District No. 497, Douglas County, Kansas (the District). Plaintiffs are J. L; the Estate of R.L., who died a fter the suit was filed; their mother D.L. (Mother); and her cohabiting boyfriend P.P. Defendants are the District and Dr. Douglas Eicher, its former directo r of special education. Before this suit was filed, the District brought a state-court action (which is still pending) to require Mother and P.P. to pay fo r special-education services provided the children during a period when, accordi ng to the District, the children were not residents of the District and therefore we re ineligible for those services. Plaintiffs then sued in federal district court, cla iming that denial of the specialeducation services received by the children from th e District would have violated the Individuals with Disabilities Education Act (ID EA), 20 U.S.C. § 1400 et seq. ; the Americans with Disabilities Act (ADA), 42 U.S.C . § 12101 et seq. ; the Rehabilitation Act, 29 U.S.C. § 794 et seq. ; the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; and the Fou rteenth Amendment. We exercise jurisdiction under 28 U.S.C. § 1291. W e affirm the judgment in favor of Defendants on one part of the IDEA clai m. As for the other claims before us, we hold that the district court should h ave stayed proceedings on the claims for damages and lacked jurisdiction to resol ve the remaining claims-3-

because of the pending state action. See Younger v. Harris , 401 U.S. 37, 54 (1971). I. Background R.L. was autistic and his brother J.L. suffers from a milder learning disability. In August 1997 Mother enrolled the chi ldren in the District. During that school year an anonymous informant told the Di strict that the children were nonresidents. When asked, Mother assured the Distr ict that she and the children were residents. In November 1999 an anonymous info rmant again told the District that the children were nonresidents. The District hired an investigator who discovered that they were being driven from Kan sas City, Kansas, outside the District, to Lawrence, Kansas, inside the District, to attend school. On January 4, 2000, the District wrote Mother sayin g that the children would not be permitted to return to school after Ja nuary 13, 2000, the end of the semester. Plaintiffs requested a due-process heari ng under the IDEA, but the District denied the request. On January 24, 2000, after negotiations between the District and counsel for Mother, Mother provided an affidavit of residency stating that R.L. was living with her within the District. The children were readmitted that day. In March 2000, however, the District aga in engaged an investigator who discovered that the children were commuting to scho ol from Kansas City.-4-

The District maintained a nonresident-admission pol icy under which nonresidents were admitted so long as there was spa ce available in the District’s schools. They were not admitted, however, if doing so would require the District to hire additional staff. Because each autistic st udent was assigned his own paraprofessional (and, apparently, the staff includ ed no extra paraprofessionals for autistic students), autistic students were unab le to obtain nonresident admission. On April 18, 2000, the District sued Mother and P.P . in Kansas state court, seeking damages to compensate it for the cost of ed ucating the children while they were nonresidents and an injunction prohibitin g the children from attending District schools in the future. The crux of the su it is whether the children were entitled to the education they received from the Di strict. On September 29, 2000, Mother, P.P., and the childr en countered by filing suit in the United States District Court for the Di strict of Kansas against the District, Dr. Eicher, and the members of the Distri ct’s school board. They alleged that (1) the District violated the IDEA by denying the requested due-process hearing and by expelling the children from January 13 until January 24, 2000, when Mother provided the affidavit of residency; (2 ) the District violated the ADA, the Rehabilitation Act, and the Fourteenth Ame ndment by discriminating against Plaintiffs because of the children’s reside nce and disabilities; (3) the-5-

District violated the FERPA by disclosing the disab ilities of the children in the state-court suit; and (4) the District violated Pla intiffs’ common-law right to privacy by placing them under surveillance and maki ng public statements about, among other things, their residency outside the dis trict. Plaintiffs sought a variety of forms of relief: declaratory judgments (on thei r IDEA, ADA, Rehabilitation Act, and Fourteenth Amendment claims); “compensatory education” for wrongful expulsion of the children (on their IDEA claim); co mpensatory and punitive damages (on their Rehabilitation Act, ADA, FERPA, a nd common-law right-toprivacy claims); attorney and expert-witness fees ( on their Rehabilitation Act, ADA, and Fourteenth Amendment claims); an injunctio n requiring the District to permit J.L. to attend school (on their Rehabilitati on Act, ADA, and Fourteenth Amendment claims); an injunction requiring the Dist rict to adopt nondiscriminatory policies (on their Rehabilitation Act and ADA claims); and an injunction requiring Defendants “to abide by the st atutory requirements of IDEA, specifically including the Procedural Safeguards wh ich protect families from the abuses perpetrated by defendants.” Aplt. App. at 6. The district court dismissed all of P.P.’s claims f or lack of standing, dismissed the claims against the school-board membe rs as redundant because of the District’s presence as a defendant, held that P laintiffs had failed to state a claim under the FERPA, see Gonzaga Univ. v. Doe , 536 U.S. 273, 287 (2002),-6-

and granted summary judgment in favor of Defendants on the ADA, Rehabilitation Act, Fourteenth Amendment, and invas ion-of-privacy claims. The court also held that Dr. Eicher enjoyed qualified i mmunity and granted summary judgment in his favor on all claims. The court tri ed the IDEA claims on deposition testimony and documentary evidence. It decided that even if there had been a procedural violation, there had been no loss of substantive educational benefits, and held that Plaintiffs hence had no rig ht to recovery. Plaintiffs appeal the district court’s judgment in favor of Defendants on the IDEA claims; the court’s grant of summary judgment on the ADA, Rehabilitation Act, and constitutional claims; the court’s grant o f summary judgment as to Dr. Eicher; and the court’s ruling that P.P. lacked standing.
II. YoungerAbstention Even when a federal court would otherwise have juri sdiction to hear a claim, the court may be obliged to abstain when a f ederal-court judgment on the claim would interfere with an ongoing state proceed ing implicating important state interests. The classic example of this propo sition, generally referred to as the Youngerdoctrine, is a federal suit to enjoin a pending st ate criminal proceeding. See Younger ; J.B. ex rel. Hart v. Valdez , 186 F.3d 1280 (10th Cir. 1999) (applying Younger ). But the Youngerdoctrine also can apply to a statecourt civilproceeding, see Trainor v. Hernandez , 431 U.S. 434, 444 (1977) (civil-7-

suit by state administrative agency to collect frau dulently obtained welfare benefits), including state-court suits between two private parties, see Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 10 (1987). Moreover, although Youngerinvolved a request for injunctive relief against the ongoing state proceeding, such relief need not be explicitly sought in federal court. In an opinion issued concurrently with Younger , the Supreme Court held that “the same equitable principles relevant to the propriety of an injunction [apply] to . . . a declaratory judgment . . . . [W ]here an injunction would be impermissible under these principles, declaratory r elief should ordinarily be denied as well.” Samuels v. Mackell , 401 U.S. 66, 73 (1971). The Court expressed two reasons for treating declaratory reli ef essentially the same as injunctive relief. First, even though a party seek s only declaratory relief, once a declaratory judgment is obtained, the party may obt ain an injunction to enforce the declaratory judgment. Id. at 72. If, for example, the court’s declaratory judgment states that a statute is unconstitutional, the court may then enjoin a prosecution of the federal plaintiff under the stat ute. Second, a federal-court declaratory judgment would ordinarily have preclusi ve effect in the state-court proceeding. Id. Once the declaratory judgment is entered, the vic torious party could insist in state court that the legal proposit ion declared in federal court cannot be disputed in the state proceeding. Thus, a state-court prosecution of the1 In Weitzel v. Dep’t of Commerce of State of Utah , 240 F.3d 871, 874-75,

877-78 (10th Cir. 2001), we affirmed the dismissal of a damages claim under the Youngerdoctrine. But that decision has no precedential v alue with respect to this issue because the opinion did not address whether astay would be the proper disposition. -8- federal plaintiff may not be able to proceed under a statute declared unconstitutional in the federal-court proceeding. These same two reasons apply, of course, regardless of the relief initially sought in the federal-court suit. For example, a p laintiff who seeks only monetary damages could, once a money judgment is obtained, s eek the additional relief of an injunction and could argue in state court that t he federal judgment has preclusive effect. Accordingly, the Youngerdoctrine extends to federal claims for monetary relief when a judgment for the plaintiff w ould have preclusive effects on a pending state-court proceeding. See generally Gilbertson v. Albright , 381 F.3d 965, 978-80 (9th Cir. 2004) (en banc). The rationale for Youngerabstention can be satisfied, however, by just staying proceedi ngs on the federal damages claim until the state proceeding is final. See Quackenbush v. Allstate Ins. Co. , 517 U.S.706, 730 (1996) (“we have permitted federal courts applying abstention principles in damages actions to enter a stay, but we have not permitted them to dismiss the action altogether); Gilbertson , 381 F.3d at 980-82. 1 Youngerabstention is jurisdictional. See Steel Co. v. Citizens for a Better
Env. , 523 U.S. 83, 100 n.3 (1998) (distinguishing case cited by dissent in support-9-

of hypothetical jurisdiction as decided on “ Youngerabstention, which we have treated as jurisdictional”). We address it at the outset because a determination that the district court lacked jurisdiction over a claim moots any other challenge to the claim, including a different jurisdictional challenge. Indeed, we have no power to decide an issue if we lack jurisdiction. See id. at 93-102. We may address jurisdictional issues in any order we find convenient. See Ruhrgas AG v. Marathon Oil Co. , 526 U.S. 574, 585 (1999) (deciding personal as ag ainst subject-matter jurisdiction); Younger , 401 U.S. at 54 (“Because our holding rests on the absence of the factors necessary . . . to ju stify federal intervention, we have no occasion to consider whether [the Anti-Injunctio n Act] . . . would in and of itself be controlling . . . .”).
III. YoungerAbstention Applied We proceed to consider Plaintiffs’ claims to determ ine whether it is appropriate to exercise federal jurisdiction over e ach. We examine only the claims Plaintiffs continue to assert on appeal; we lack jurisdiction to inquire into judgments not appealed, whether or not jurisdiction was properly exercised below. See Snell v. Tunnell , 920 F.2d 673, 676 (10th Cir. 1990). We turn firs t to Plaintiffs’ ADA, Rehabilitation Act, and Fourteenth Amendment claims, and hold that Youngerabstention is required. We then address Plaintiff s’ IDEA claim. We-10-

hold that part of this claim is subject to Youngerabstention and that the remainder was properly rejected by the district court on summ ary judgment. A. The ADA, Rehabilitation Act, and Fourteenth Amend ment Claims Plaintiffs contend that the District’s nonresident- admission policy violates the ADA and the Rehabilitation Act by treating disa bled nonresident children differently from nonresident children who are not d isabled; that denying admission to the children on the basis of residency would be a violation of their Fourteenth Amendment right to travel; that equal-pr otection principles required the District to admit them as nonresidents; and that the nonresident-admission policy violates due process by denying their “prope rty interest [in the children’s] education and . . . fundamental liberty interest in having as many residences as they desire.” Aplt. Br. at 24. The district court lacked jurisdiction over each of these claims. Each claim asserts the entitlement of the children to the educ ation they received from the District. The court could not grant any relief—inj unctive, declaratory, or monetary—without concluding that the children were so entitled. If any claim succeeds, then there is no merit to the District’s state-court suit, which seeks reimbursement from Mother and P.P. for educational expenses of the children to which they, as nonresidents, were not entitled. Th erefore, a resolution favorable to Plaintiffs in this case would foreclose that sui t (and might even be enforced by-11-

a federal injunction against the suit), an interfer ence with state-court litigation that is impermissible under Younger

. See Samuels , 401 U.S. at 72-73. Younger abstention is inappropriate when a federal plaintif f cannot pursue its federal contentions in the ongoing state procee ding. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n , 457 U.S. 423, 435-37 (1982). But no reason appears why Plaintiffs’ contentions here cou ld not be interposed as defenses in state court. See Lebbos v. Judges of Superior Court , 883 F.2d 810, 815 (9th Cir. 1989) (opportunity to raise federal c ontentions as defenses is sufficient). There remains, however, one further complication in this case. The parties are not identical in the state and federal lawsuits . In state court the District is plaintiff, and Mother and P.P. are defendants. In federal court Mother and P.P. are joined as plaintiffs by J.L. and the Estate of R.L., who are not parties in the state case. Likewise, the District is not the only defendant; an additional defendant is Dr. Eicher, who is not a party in the District’s state suit to recover the cost of the children’s education. Consequently, we must decide whether Youngerbars the claims of J.L. and the Estate of R.L. aga inst either defendant, and bars the claims of all plaintiffs against Dr. E icher, even though J.L., the Estate of R.L., and Dr. Eicher are not parties in t he state case. As we proceed to explain, we hold that the Youngerbar does extend to these claims.-12-

Two 1975 Supreme Court opinions provide guidance. In Doran v. Salem Inn, Inc., 422 U.S. 922, 924 (1975), three bartenders faced w ith a local ordinance prohibiting topless dancing filed federal challenge s to the constitutionality of the ordinance. One bartender violated the ordinance an d was prosecuted. Id. at 925. The other two did not. Id. at 924-25. The Court held that Youngerbarred the claim of the prosecuted bartender, but not the clai ms of the other bartenders. It added, however, that “there plainly may be some cir cumstances in which legally distinct parties are so closely related that they s hould all be subject to the Younger considerations which govern any one of them.” Id. at 928. In the other case, Hicks v. Miranda , 422 U.S. 332, 334-35 (1975), a state prosecuted t heater employees for showing an obscene film, and seized s everal copies of the film. When the theater owners brought a federal-court cha llenge, the Court applied Younger. The Court wrote, “Absent a clear showing that [th e owners] . . . could not seek the return of their property in the state proceedings and see to it that their federal claims were presented there,” Youngerabstention could not be avoided. Id. at 349. The owners, it said, “had a substantial s take in the state proceedings, so much so that they sought federal re lief . . . . Obviously, their interests and those of their employees were intertw ined; and, as we have pointed out, the federal action sought to interfere with th e pending state prosecution. Id. at 348-49.-13-

Doran illustrates that it is proper for a federal court to exercise jurisdiction over the claim of a genuine stranger to an ongoing state proceeding even though a federal decision clearly could influence the state proceeding by resolving legal issues identical to those raised in state court—forexample, both proceedings may involve challenges to the same ordinance as an unco nstitutional restraint on expressive activity. See Doran , 422 U.S. at 928. So long as the stranger has its own distinct claim to pursue, it may even be aligne d with the state-court litigant in a common enterprise of vindicating the policy th at gives rise to their individual claims. See Federal Home Loan Bank Bd. v. Empie , 778 F.2d 1447, 1452 (10th Cir. 1985); Robinson v. Stovall , 646 F.2d 1087, 1091 (5th Cir. 1987) (“neither a common interest in the outcome of federal litigatio n nor a common effort in pressing it requires abstention as to all plaintiff s”). But when in essence only one claim is at stake and the legally distinct party to the federal proceeding is merely an alter ego of a party in state court, Younger applies. See Cedar Rapids Cellular Tel., L.P. v. Miller , 280 F.3d 874, 882 (8th Cir. 2002) (corporation ca nnot avoid Youngerby having subsidiaries sue in federal court when f ederal relief could obstruct enforcement of any state-court remedy); Spargo v. N.Y. State Comm’n on Jud. Conduct , 351 F.3d 65, 81-84 (2d Cir. 2003) ( Youngerapplies to persons not parties in state proceeding when free-speech right asserted is purely derivative of free-speech rights of defendant in state proceeding ).-14-

J.L. and the Estate of R.L. seek to vindicate in fe deral court the right of the children to the education they received from the Di strict. The state-court defense of Mother and P.P. that they do not have to pay the District for that education necessarily derives from the entitlement of the chi ldren to that education. As Judge Wisdom wrote in Robinson , “The federal plaintiffs and state defendants in Hicks had much closer mutual interests than common membe rship in, or support of, a large political organization: they were the owners and employees of the same small business.” 646 F.2d at 1092. Here we a re presented with a familial relationship, even closer than the business relatio nship in Hicks , and with similar preclusive consequences. Cf. Restatement (Second) of Judgments § 41(1)(c) (person is bound by judgment binding “executor, adm inistrator, guardian , conservator, or similar fiduciary manager of an int erest of which the person is a beneficiary” (emphasis added)); id. § 51(1) (preclusive effect of judgment when party in one case is vicariously liable for conductof party in other case). Accordingly, we hold it improper under Youngerto exercise federal jurisdiction over the claims of J.L. and the Estate of R.L. even though they are not parties to the state-court suit. Plaintiffs’ claims against Dr. Eicher are similarly barred because of the close connection of those claims to their claims in state court and the close connection of Dr. Eicher to the District, which is the plaintiff in state court.-15-

Plaintiffs’ allegation against Dr. Eicher is that h e was the officer of the District responsible for many of its allegedly unlawful acti ons. Whether Dr. Eicher’s actions were appropriate depends on whether the chi ldren were entitled to the education they received. Plaintiffs’ claim against Dr. Eicher is derivative of, if not the same as, their claim against the District. The relationship between Dr. Eicher and his former employer, the District, i s comparable to that between the theater owners and their employees in Hicks . In the context of the claims on appeal, Dr. Eicher is a mere alter ego of the Distr ict.
B. The IDEA Claims When Mother was informed of the District’s plan to expel the children as nonresidents, she asked the District for a due-proc ess hearing under the IDEA. Plaintiffs’ federal suit claims that the District’s denial of this request constitutes an actionable violation of the IDEA. As we underst and this claim, it does not assert any right of the children to the education r eceived from the District and resolution of the claim would not interfere with th e state-court litigation. Thus, there is no Youngerbar. Nevertheless, we are compelled by our decision in T.S. v. Ind. Sch. Dist. No. 54, 265 F.3d 1090 (10th Cir. 2001), to affirm the distr ict court’s decision denying relief. In that case we held that “[f]or a claim based on deprivation of [an IDEA] due process hearing . . . to be cognizabl e, [it] must be linked with a-16-

consequent loss of substantive benefits.” Id. at 1093. Here, there was no “loss of substantive benefits.” Not only do Plaintiffs fail to allege any connection between the denial of the due-process hearing and a ny substantive educational harm, they fail to allege any substantive education al harm at all. Indeed they tell us that “all parties agree that the school district provided [the children] an ‘appropriate public education’ . . . during the tim e they attended school in the district.” Aplt. Br. at 10. Plaintiffs do not con tend on appeal that expulsion of the children between January 14 and January 21, 200 0, constitutes a substantive educational harm. (Apparently, Mother and P.P. wer e too ill to take the children to school.) Thus, underT.S. , we must affirm. Plaintiffs may, however, be contending that the sub stantive harm is the state-court suit to recover the cost of educating t he children; they say that the suit was “the ultimate result” of the denial of the due- process hearing. Aplt. Reply Br. at 7. But to the extent that Plaintiffs raised this contention below, Younger deprived the district court of jurisdiction to reso lve it. The state suit would constitute an injury to Plaintiffs only if it lacke d merit; and, as explained above, Youngerprohibits federal litigation that seeks to establi sh the lack of merit of pending state litigation. So, too, for Plaintiffs’ remaining contention—that the state-court suit violated the IDEA independently of the denial of th e due-process hearing. A-17-

decision that the state-court suit violated the IDE A would necessarily imply that the children were entitled to the education they re ceived. Thus, it would preclude the District’s state-court claim, contrary to Younger

. Finally, we observe that P.P. lacks standing to rai se the only claim not barred by Younger . The constitutional mandate that federal courts c an hear only a Case or Controversy, U.S. Const. art. III § 2, requ ires “a plaintiff [to] show [that] (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical ; (2) the injury is fairly traceable to the challenged action of the defendant ; and (3) it is likely, as opposed to merely speculative, that the injury will be redr essed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Env. Servs. ( TOC), Inc. , 528 U.S. 167, 180- 81 (2000). Here P.P. fails to show a redressable i njury in fact with respect to the nonbarred claim. Although the denial of a right gu aranteed by statute may constitute an injury in fact, see Fed. Election Comm’n v. Akins , 524 U.S. 11, 21 (1998), P.P. does not (and could not) contend that the IDEA granted him the right to a hearing, see 20 U.S.C. §§ 1415(a) (hearing provided for childre n and their parents), 1401(19) (defining “parent”). The only injury alleged by P.P. is the state-court litigation. That alleged injury may gi ve him standing with respect to the claims barred by Younger , but it is not an injury redressable through the o ne nonbarred claim—which is not barred precisely becau se it does not question the-18-

state-court litigation. Therefore, the district co urt properly dismissed this claim of P.P.’s for lack of standing, and we AFFIRM that dismissal. With respect to the other claims, we AFFIRM the jud gment below as to the IDEA claim based on alleged denial of a due-process hearing, VACATE the judgment as to all other claims raised on appeal, a nd REMAND for the district court to STAY proceedings on the claims for damages and DISMISS without prejudice the remaining vacated claims.