UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEVEN R.F., a minor b y and through his mother Carrie Fernandez, Plaintiff - Appellee,

v. HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant - Appellant. No. 18-1327 (D.C. No. 1:17-CV-00629-RBJ) (D. Colo.)

________________ _________________ ORDER

________________ _________________ Before BRISCOE , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ This matter is before the court to correct clerical errors rela ted to the inclusion of record citations in the Opinion issued on May 28, 2019. Specifi cally, the Clerk is directed to substitute the version of the d ecision attached to this orde r for the version issued previously. The revised versi on removes the record citations, a nd is otherwise exactly the

same.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk FILED United States Court of Appeals Tenth Circuit 

### June 12, 2019
Elisabeth A. Shumaker Clerk of CourtPUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ STEVEN R.F., a minor b y and through his mother Carrie Fernandez, Plaintiff - Appellee,

v. HARRISON SCHOOL DISTRICT NO. 2, and various of its elected and appointed representatives in their official capacities, Defendant - Appellant. No. 18-1327

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-00629-RBJ)

________________ _________________ John R. Stanek, Anders on, Dude, and Lebel, C olorado Springs, Co lorado (William K. Dude, Anderson, Dude, and Lebel, C olorado Springs, Colorado, an d W. Stuart Stuller, Caplan & Ernest, LLP, Boulder, C olorado, with him on the briefs ), appearing for Appellant. Michael C. Cook, Cook Varriano, P .C., Colorado Springs, Colorad o, appearing for Appellee.

________________ _________________ Before BRISCOE , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ In this appeal, Defendant-Appella nt Harrison School District No . 2 asks us to FILED United States Court of Appeals Tenth Circuit 

### May 28, 2019
Elisabeth A. Shumaker Clerk of Court2 reverse the district court’s ru ling that it violated the Indivi duals with Disabilities Education Act (IDEA) by failing to provide Plaintiff-Appellee S teven R.F. with a free appropriate public education. Becau se we conclude that the cas e is moot, we dismiss this appeal, vacate the district cour t’s ruling, and remand with ins tructions to dismiss as moot.
I The IDEA provides federal funds to states for educating childr en with disabilities, guaranteeing disabled children be tween the ages of three and tw enty-one access to a free appropriate public education (F APE). 20 U.S.C. §§ 1400(d), 141 2(a)(1). A FAPE “emphasizes special education and related services designed to meet [the child’s] unique needs.” Id. § 1400(d ). A child’s individualized education pro gram (IEP) governs how a school will provide him or her a FAPE. See id. § 1414(d)(1)(A) . The IEP is a written statement developed in a meeting attended by the student’s pare nts, teacher, and a special education professional that su mmarizes the student’s abilities, outlines goals for the student’s education, specifies t he services the student will re ceive to achieve those goals, and establishes criteria to eva luate the student’s progress. I d. § 1414(d)(1). The IDEA also requires state and local educational agencies re ceiving funding under the Act to “establish a nd maintain procedures . . . to en sure that children with disabilities and their parents are guaranteed procedural safegu ards with respect to the provision” of a FAPE. Id. § 14 15(a); see also Honig v. Doe, 48 4 U.S. 305, 311–12 (1988). For example, the IDEA requi res that a child’s parents be notified by the school district of any proposed change t o the child’s educational plac ement. 20 U.S.C. § 1415(b)(3). It also requires th at the parents be permitted t o participate in discussions3 relating to their child’s evalu ation and educa tion. Id. § 1414 (d)(1)(B)(i). And it requires states to allow parents the oppo rtunity to bring a complaint ab out “any matter relating to the identification, evaluation, or educational placement of [th eir] child, or the provision of a [FAPE] to such ch ild.” Id. § 1 415(b)(6).
II Steven R.F. is a fourteen-yea r-old boy with se vere autism. In 2013, the District agreed to place Steven at the Al pine Autism Center, a private o ut-of-district facility in Colorado Springs. In 2014, the District proposed t o move Steven fro m Alpine to a public school called the School of Excellenc e (SOE) for the 2 014–2015 schooly ear. Steven’s mother, Carrie Fernandez (Mother), objected and filed a state complaint asserting various IDEA violations. After an investiga tion, the State Complaint Office r (SCO) agreed with Mother and issued a written decision (2014 SCO Order). As a remedy, t he SCO ordered, among other things, that the District could not change Steven’s place ment until: (1) staff members from any new placement “p roposed by” the District “have observed [Steven] . . . at [Alpine] to understand the nature of [his] educational and behavioral functioning” and (2) the District “convenes an IE P meeting, facilitated by a neu tral facilitator (not employed by the School Distric t) . . . and develops an IEP that includes a description of placement sufficient to allow [Mot her] to understand what is be ing proposed.” App., Vol. II at 618. Steven remained a t Alpine for the 2014–2015 an d 2015–2016 schoolyears. On March 29, 2016, and April 5, 2016, the District held Steven ’s IEP meeting for4 the 2016–2017 schoolyear. The IEP meeting was facilitated by t he District’s school psychologist, Michelle M cFall. Toward the e nd of the meeting, after agreeing on required aspects of the IEP, the attendants discussed what faci lity Steven would attend. Amy Lloyd, the District’s speci al education coordinator, propos ed three alternatives: Roundup Fellowship, Alpine, and the SOE. The team decided on t he SOE, over Mother’s objection. At the time of the IEP meeting, no staff m embers from either the SOE or Roundup ha d observed Steven at Alpine. After the meeting, McFall prep ared a “Prior Written Notice of Special Education Action” summarizing the IEP Team ’s discussions and decisions. The notice identified the SOE as Steven’s placement fo r 2016–2017, but did not identi fy which pro gram within the SOE Steven would attend. The SOE is a public school oper ated by Pikes Peak Board of Coo perative Educational Services. The SOE ha s two programs relevant in thi s case: the Communication and Language progr am (COLA) and the Learning Inde pendence by Educating Responsible Trustwor thy Youth program (LIBERTY). COL A is designed for students who have significant be havior issues and who are large ly unable to work independently. LIBERTY is design ed for students with either an autism spectrum diagnosis or a dual diagnosis a nd who are generally able to exp ress their wants and needs and are able to work in small groups. The District believed th at either program could have implemented Steven’s IEP. On May 5, 2016, Mother filed an other state complaint alleging that the District violated the 2014 SCO Order by ch anging Steven’s educational pl acement and by not5 utilizing a neutral facilitator fo r his 2016 IEP meeting. She also asserted that the District’s placement decision of t he SOE was not based on Steve n’s individual needs, that the District wrongfully predetermined Steven’s placement, and t hat the District did not make a written offer of educatio nal placement. After an invest igation, the SCO ruled, as relevant, that the District had v iolated the 2014 SCO Order by not utilizing a neutral facilitator for Steven’s 2016 IEP meeting, and that the Distric t’s decision to move Steven to the SOE was predetermined a nd not based on Steven’s individu al needs. The District challenged the SC O decision by filing a due proce ss complaint with the Colorado Office of A dministrative Courts pursuant to 20 U.S .C. § 1415(f). The District sought a determination th at its proposal to transfer S teven to the SOE for the 2016–2017 schoolyear was an appr opriate offer of FAPE. The Adm inistrative Law Judge deciding the complaint concluded that the “District made an offer of FAPE, and that any procedural violations tha t may have occurred did not d eprive [Steven] of FAPE or educational benefit, and did not deprive [Mother] of her rig ht to meaningfully participate in the decision-making process.” App., Vol. II at 439. Mother appealed the ALJ’s deter mination to federal district cou rt pursuant to 20 U.S.C. §§ 1415(i)(2)(A) and (3)(A ) and 34 C.F.R. § 300.516(b) a nd asked the district court to find that the 2016–2017 IEP denied Steven the FAPE to which he is entitled. She asserted that the District v iolated the IDEA by: (1) not co mplying with the terms of the 2014 SCO Order; (2) not ide ntifying Steven’s proposed educa tional placement (COLA or LIBERTY) in his 2016–2017 IEP; (3) p redetermining Stev en’s placement in6 the SOE; and (4) creating an IEP not based on Steven’s individu al needs. 1 After merits briefing, the district court conc luded that the District had vi olated the 2014 SCO Order and various procedural protecti ons within the IDEA, and that th ese violations amounted to the denial of a F APE. Specifically, the district court rule d, as regards Steven’s 2016 IEP: (1) the District failed to include a specific offer of edu cational placement; (2) the District failed to co mply with the requirements of the 2014 SCO Order, 2 which were designed to protect Mother’s right to a “fair IEP meeting,” whi ch includes “a clear offer of educational placement” and “mean ingful participation in the IEP process,” App., Vol.

1 Mother also asserted a claim for a violation of the Rehabilita tion Act, 29 U.S.C. § 701 et seq. The distric t court concluded that the Dis trict did not violate the Rehabilitation Act, and Mother d oes not appeal that ruling.

2 The 2014 SCO Order prohibited th e District from changing Steve n’s educational placement until:

a. The School District conducts [a] comprehensive evaluation[] of [Steven], in accordance with t he requirements of IDEA; b. Staff members from any new pl acement proposed by the School District, which staff would ha ve responsibility for providing s pecial education and related services t o [Steven] have observed [him] . . . at [Alpine] to understand the nature of [his] educational and beha vioral functioning.

c. The School District convenes an IEP meeting, facilitated by a n eutral facilitator (not employed by the School District), for [Steven] that complies with all pro cedural requirements of IDEA, particularly all of the provisions that the SCO has found the School District to have violated, and develops an IEP th at includes a description of placement sufficient to allow [M other] to understand what is be ing proposed. App., Vol. III at 618.7 VII at 1801; and (3) taken toget her, those failures amounted to the denial of a FAPE. The district court ordered the District to reimburse Mother for Ste ven’s tuition at Alpine for 2016–2017 and awarded her attorney ’s fees as the prevailing par ty.
III Mother argues that the appeal i s moot, and we must address tha t issue first because Article III limits courts to adjudi cating “actual, ongoing cont roversies.” Honig, 484 U.S. at 317. To satisfy the case-o r-controversy requirement of Arti cle III, “the parties ‘must continue to have a personal stak e in the outcome of the lawsuit ’ throughout the various stages of litigation.” Garcia v. Bd. of Educ. of Albuquerque P ub. Sch., 520 F.3d 1116, 1123 (10th Cir. 2008) (quoting Le wis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990)). This case concerns Steven’s 2016–2017 IEP, which governed a sc hoolyear that has passed. Although Mother in itially sought and was awarded r eimbursement for Steven’s tuition at Alpine, the p arties agree that the District paid for Steven’s enrollment at Alpine pursuant to the IDEA’s stay-put provision, 3 and need not reimburse Mother for anything. Therefore, unless a m ootness exception applies, ther e is no “actual, ongoing controvers[y]” before us. H onig, 484 U.S. at 317. The District argues that this ca se falls into the exception to the mootness doctrine for cases “capable of repetition yet evading review.” Id. at 3 18 (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per cur iam)). This exception, which applies only in

3 The stay-put provision provides that “during the pendency of a ny proceedings conducted pursuant to [ the IDEA], unless the State or local educational agency and the parents otherwise agree, the child shall remain in [his] then-current educational placement . . . .” 20 U.S.C. § 1415(j).8 “exceptional situations,” Spen cer v. Kemna, 523 U.S. 1, 17 (199 8), can prevent dismissal on mootness grounds when “(1) the challenged action was in its duration too short to be fully litigated prior to its ces sation or expiration, and (2) t here [i]s a reasonable expectation that the same compla ining party woul d be subjected to the same action again,” Murphy, 455 U.S. at 482 (quoting Ill. Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 187 (1979)). The first prong of the exceptio n is clearly satisfied. A one- year IEP is, by its nature, “too short [in duration] to be fully litigated prior to its . . . expiration.” Id.; see also Sch. Comm. of Town of Burli ngton v. Dep’t of Educ., 471 U. S. 359, 370 (1985) (“[T]he [IDEA] review process is ponderous. A final judicial d ecision on the merits of an IEP will in most instances come a year or more after the school term covered by that IEP has passed.”). The pivotal issue then becomes w hether the District has shown that there is a “reasonable expectation” that it will be subjected to the same action again. The District’s “reasonable expectation” must be m ore than “a mere physical or theoretical possibility”; it must be something akin to a “demonstrated probability” that the District will again be in this situation. Murphy, 455 U.S. at 482. The District argu es that Mother “almost certainly will challenge [Steven’ s most recent] IEP when these proceedings have been completed,” Aplt. Reply at 5, a nd notes that “[a]t the end of [ Steven’s December 4, 2018] IEP meeting, [Mother] expressed he r disagreement” with the IEP team’s proposed placement at Sierra High School in its The Autism Program, id. at n.2. The District argues a live controversy remains: whether the District will ha ve to maintain Steven’s9 enrollment at Alpine during the pendency of any challenge by Mo ther to Steven’s December 4, 2018 IEP. Even assumi ng that this amounts to a rea sonable expectation of future IDEA disputes between the District and Mother, it does n ot satisfy the mootness exception in this case because th e procedural challenges Mother raises are fact-specific to
Steven’s 2016–2017 IE P proceedings. Mother relies on two cases in support of her mootness argument : Board of Education of Downers Grove Grade School District No. 58 v. Stev en L., 89 F.3d 464 (7th Cir. 1996), and District of Columbi a v. Jeppsen ex rel. M.J., 4 68 F. Supp. 2d 107 (D.D.C. 2006). Each case involved a cha llenge to an IEP for a complete d schoolyear and the application of the stay-put pro vision preventing the school fro m implementing the challenged IEP. See St even L., 89 F.3d at 465; Jeppsen, 468 F. Supp. 2d at 109. In Steven L., by the time the case re ached the Seventh Circuit, th e child’s parents had “already agreed to a new IEP with a different school district.” 89 F.3d at 467. In Jeppsen, the parents and school district had reached a settleme nt and agreed to the student’s educational placement f or the schoolyear at issue. 4 68 F. Supp. 2d at 110. In each case, the court concluded t hat the case was moot. In Stev en L., the court concluded that the capable-of-repetition exce ption did not apply because [the student] has successfully c ompleted grade school and is on his way to high school. He will never again attend fifth grade [(the grad e to which the challenged IEP related)]. The IEP modification at issue . . . has been replaced by an IEP for [the stude nt]’s high school years. [The student]’s parents struck this agreement w ith a different entity than the [Defendant Board]. There is no continuing c ontroversy. This school distr ict has no authority to modify any IEP involving [the student]. 89 F.3d at 468. In Jeppsen, the d istrict court also concluded that the exception did not10 apply, even though “it is likel y both that [the district] will attempt to move [student’s] placement in the future and that the change will be challenged by [parent],” because “it is impossible to predict whether a hearing officer will continue t o support the [challenged] placement.” 468 F. Supp. 2d at 112 n.5. These cases support our conclus ion that this case is moot. In each case, “[b]ecause the status quo remained in effe ct from the time [the parents] c hallenged the school district’s attempt to modify t he IEP, they de facto received th e relief they originally sought . . . ; the modified IEP ne ver took effect.” Steven L., 89 F.3d at 468; accord Jeppsen, 468 F. Supp. 2d at 111 –12. And, in each case, there w as no evidence that the asserted IDEA violation was likel y to occur again. Steven L., 89 F.3d at 468 (“This school district has no authority to modify any IEP involving [s tudent].”); Jeppsen, 468 F. Supp. 2d at 112 n.5 (“ [I]t is likely that [student’s] IEP will change in the future, thus, it is impossible to predict whether a hearing officer will continue t o support the [challenged] placement.”). Each of those facts is present in this case. By operation of the stay-put provision, Steven remained at Alpine for t he 2016–2017 sch oolyear and, we assume, he has continued to remain there. And, a lthough the District asserts that Mother “almost certainly will challenge” Steven’s December 4, 2018 IEP, Aplt. Reply at 5, nothing indicates that, even if she doe s challenge it, her challenges w ill be of the same procedural nature as those she brought in this case. A discussion of Honi g, on which the District relies in support of its capable -of-repetition argument, clarif ies this point. In Honig, two students eligib le for special education because of emotional11 disturbance challenged indefin ite suspensions by their school d istrict. 484 U.S. at 312– 13. Each student had e ngaged in “violent and disruptive condu ct,” but it was undisputed that the students’ conduct was “related to their disabilities.” Id. at 312. The Supreme Court concluded that the case was moot for one student, who was twenty-four and no longer IDEA-eligible. Id. at 318 . The other student, however, was twenty, had not completed high school, and was therefore still entitled to a FA PE. Id. The Court concluded that the twenty-year-o ld student’s claims were not mo ot because of his “continued eligibility for educati onal services under [the IDEA ], the nature of his disability, and [the school distric t’s] insistence that all loc al school districts retain residual authority to exclude dis abled children for dangerous c onduct.” Id. at 318–19 (footnote omitted). This conclusi on relied on the “inextricabl e link between the student’s violent behavior and the challeng ed policy of exclusion.” Brow n v. Bartholomew Consol. Sch. Corp., 442 F.3d 588, 599 (7th Ci r. 2006). Given t he nature of the student’s disability and the school distric t’s assertion that it could un ilaterally refuse to provide educational services to the st udent, the Supreme Court had “lit tle difficulty concluding that there [wa]s a ‘reasonable ex pectation,’ that [the student] would once again be subjected to” the precise acti on challenged in that case, and i t therefore concluded that his claim was not moot. Honig, 484 U.S. at 319–20 (quoting Murphy, 455 U.S. at 478). The certainty of the continued di spute is not present here as it was in Honig. Even assuming the District is correct t hat Mother “almost certainly will challenge” Steven’s new IEP, Aplt. Reply at 5, there is no reason to conclude—must less a demonstrated probability—that any subsequent I DEA challenge will be premised on the same12 procedural shortcomings by the District that Mother challenges in this case. 4 Mother’s challenges to Steven’s 2016–2017 IEP were based on specific act ions that she alleged the District did not take in rela tion to Steven’s 2016–2017 IEP. A s relevant on appeal, she challenged the District’s failure to (1) have a staff member fr om the new placements proposed by the District (Roundup and the SOE) observe Steven a t Alpine, (2) utilize a neutral facilitator for Steven’s IEP meeting, and (3) adequatel y identify Steven’s proposed educational placement. Nothing suggests that these al leged procedural failures will be at issue in any subseque nt IDEA challenge Mother brings

. 5 If we decided now, more than three years after the challenged actions, whether tho se alleged failures

4 In fact, the District’s asser tions about what ha ppened in the December 2018 IEP meeting indicate that the c hallenges Mother brings to Steve n’s new IEP likely will not be of the same nature a s those she brought in this cas e. The District stated in briefing that during Steven’s 2018 IEP meeting, “[t]he IEP team determined and proposed that [Steven] be educat ed at his neighborhood high sch ool, Sierra High School in its The Autism Program .” Aplt. Reply at 5. Therefor e, Mother’s argument in this case that the IDEA requi red the District to identify St even’s placement as either COLA and LIBERTY (not mer ely the SOE) seems unlikely to be at issue in any challenge Mother may bring to Steven’s most recent IEP.

5 It is true that the parties have been invol ved in IDEA-related disputes before, and that Mother has consistently opposed the District’s attempt s to place Steven somewhere other than Alpine. A nd in some circumstances, ongoin g disagreement could satisfy the capable-of-re petition exception to mootness. See, e.g., Jenkins v. Squillacote, 935 F.2d 303, 308 (D .C. Cir. 1991) (concluding tha t an IDEA claim was not moot when “both litigants read ily agreed that the question of the degree of specificity required of the Dis trict in providing notice to par ents under the IDEA is . . . . reasonably likely to be a re curring legal question with res pect to the District’s educational plans for the very p upil whose parents are now befo re this court”). But the only IDEA claims at issue on appeal are the District’s alle ged procedural violations in creating Steven ’s 2016–2017 IEP. And although it is possible that the District might again create an I EP with the same alleged defici encies, the record does not contain a “demonstrated p robability” that it will.13 amounted to a violation of the ID EA, we “would be issuing, in e ffect, an advisory opinion. Our decision would merely tell the parties who was co rrect . . . . It would do nothing to define the contours o f the parties’ continuing legal relationship under the IDEA such that future repetitions o f the injury c ould be avoide d.” Brown, 442 F.3d at
599–600. Despite arguing that the appeal is moot, Mother argues that th e district court case “falls within the exception to the mootness doctrine.” Aplee. Br. at 6. In support, she asserts that “the District con tinues to attempt to change Steve n’s educational placement in violation of the IDEA.” Id. Howev er, as discussed, the capabl e-of-repetition exception in the IDEA context looks at the likelihood that the specific I DEA violations alleged will be repeated. And the record does not indicate that it is reaso nably likely that the District will again violate the IDEA in th e specific ways that Mother al leges it did in this case. Because there is no “reasonable e xpectation” that the IDEA viol ations Mother asserts are likely to happen agai n, the capable-of-repetition exception doe s not prevent us from concluding that the district court action is also moot. 6 Because the case is moot, we dism iss this appeal, vacate the d istrict court’s ruling, and remand with instructions to dismiss as moot. See Lewis, 49 4 U.S. at 482 (1990)

6 As noted, Mother asserted both s ubstantive and procedural IDEA violations in district court. As discusse d, the record does not support a conclusion that the procedural violations are reas onably likely to occur again. An d even if the record could support a conclusion that t he substantive violations are reasonably likely to occur again, Mother does not argue that distinction, pointing o nly to the District’s alleged procedural violations.14 (“Our ordinary practice in dispo sing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss.”). 7

7 Mother’s argument that equity dic tates that we affirm the dist rict court’s judgment and remand for a determin ation of attorney’s fees has no support in the law. Under the IDEA, only the “preva iling party” can be awarded atto rney’s fees. 20 U.S.C. § 1415(i)(3)(B). A party can only be determined to prev ail if it does so on the merits or with “the necessary judi cial imprimatur, ” such as thr ough a consent decree. Buckhannon Bd. & Care Home v. W. V a. Dep’t of Health & Human Re s., 532 U.S. 598, 605 (2001). Because the cas e is moot, the court does not have jurisdiction to make a determination on the meri ts, and Mother cannot be a “pre vailing party” under the IDEA. Rio Grande Silvery Minnow v. Bur eau of Reclamation, 601 F.3d 10 96, 1129 (10th Cir. 2010), which Mother c ites in support of her argument for attorney’s fees, does not dictate otherwise. Silv ery Minnow noted that “if the party seeking vacatur has caused mootness, generally we do not order vacatur.” Id. That is not the circumstance here. This case has become moot by the passage of time and the nature of the IDEA violations at issue, not by any action by the Distr ict.