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San Diego County Office of Education v. Pollock

United States District Court, S.D. California

June 20, 2014



ROGER T. BENITEZ, District Judge.

Before this Court is a Motion to Dismiss Plaintiff San Diego County Office of Education's First, Second, and Third Claims for Relief, filed by Defendant and Counter-Claimant Julia Pollock (Pollock), as parent on behalf of M.P, a minor. (Docket No. 78). Pollock asks this Court to dismiss the three claims against her for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). For the reasons stated below, the Motion to Dismiss is GRANTED.


This case arises out of a due process decision rendered by the California State Office of Administrative Hearings (OAH) under the Individuals with Disabilities Education Act (IDEA). M.P. is a minor who was arrested for murder and assault with a deadly weapon, and was detained at Juvenile Hall. (Am. Compl. ¶ 1). While in Juvenile Hall, SDCOE was responsible for providing M.P. with the free appropriate public education (FAPE) guaranteed by the IDEA. ( Id. ¶ 4; 20 U.S.C. §§ 1400, et seq. ; CAL. EDUC. CODE §§ 48645.1, 48645.2, 56150). M.P. was deemed incompetent to stand trial on August 21, 2012. (Am. Compl. ¶ 5). On November 16, 2012, M.P. filed for due process with OAH through his mother, Pollock.

The administrative law judge (ALJ) identified the issues as follows:
(1) Since January 16, 2012, has the [SD]COE deprived [M.P.] of a free appropriate public education (FAPE) both procedurally and substantively by failing to offer:
(a) Appropriate mental health services including therapy and counseling;
(b) Appropriate academic services when [SD]COE offered 240 minutes of academic instruction daily; and
(c) Appropriate occupational therapy services?
(2) Since August 21, 2012, did the [SD]COE deny [M.P.] a FAPE both procedurally and substantively by failing to offer [M.P] an appropriate placement when it failed to offer him a placement at a residential treatment center (RTC), which was the least restrictive environment (LRE)?

(AR 2410). M.P. sought an order directing SDCOE to place him at an RTC, and awarding him compensatory education. ( Id. )

The ALJ conducted hearings, and rendered a decision on April 16, 2013. (AR 2409-2458). In the decision, the ALJ ruled in M.P.'s favor as to issues 1(c) and 2. (AR 2457). Accordingly, the ALJ ordered that, within 60 days, SDCOE conduct an occupational therapy (OT) assessment, and convene an Individualized Education Program (IEP) meeting to determine M.P.'s present levels of performance, goals, and services in the area of occupational therapy. ( Id. ) The ALJ also ordered that SDCOE immediately begin a search for an appropriate RTC placement for M.P. which specializes in behavior modification and is experienced in treating children with fetal alcohol syndrome disorders. ( Id. ) SDCOE was ordered to complete the search for the residential placement, and to convene an IEP meeting to review and implement the placement, within 45 days. ( Id. )

SDCOE complied with the ALJ's orders. The OT assessment and IEP meeting took place. (Pollock Decl. ¶ 3). SDCOE also provided the RTC placement. ( Id. )

Pollock asserts that, on or about August 31, 2013, the home school district, Cajon Valley Union School District (CVUSD), took over responsibility for conducting IEP meetings and offering a FAPE for M.P. ( Id. ¶ 4). Since August 31, CVUSD has been the education agency attending IEP meetings and making offers of FAPE. ( Id. ) SDCOE has not been present at, or involved in, IEP meetings since August 31. ( Id. ¶ 5).

On July 15, 2013, SDCOE filed a Complaint in which it sought judicial review of the ALJ's decision. (Docket No. 1). A First Amended Complaint (FAC) was filed on October 24, 2013. (Docket No. 9). The first claim for relief, against Pollock alone, appeals the ALJ's decision under the IDEA. The second claim for relief seeks declaratory relief against Pollock and the County of San Diego (County). The third claim seeks declaratory relief against Pollock and the San Diego Regional Center for the Developmentally Disabled. (Regional Center). A fourth claim asserts breach of contract against Regional Center. The fifth claim demands contribution and indemnification from the County and Regional Center.

Pollock filed a Motion to Dismiss for lack of subject matter jurisdiction on April 25, 2014. She asserts that the claims against her are moot, and that this Court lacks jurisdiction to issue the requested declaratory relief against her. SDCOE timely opposed on May 13, 2014. (Docket No. 80). Pollock filed a reply brief on May 20, 2014. (Docket No. 81). No other defendant has filed, or requested leave to file, any briefing on this Motion. Pollock takes no position as to whether SDCOE's claims should be dismissed as to other defendants if she prevails. (Mot. at 1 n. 1).


A. Mootness

Article III of the United States Constitution limits the jurisdiction of federal courts to "Cases" and "Controversies." U.S. CONST. ART. III, § 2, cl. 1; Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 797 (9th Cir. 1999) (citing Pub. Util. Comm'n of the State of Cal. v. Fed. Energy Reg. Comm'n, 100 F.3d 1451, 1458 (9th Cir. 1996)). A party must maintain a live controversy through all stages of the litigation process. Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001); Doe, 177 F.3d at 797.

When the issues presented in an action are no longer "live" or the parties lack a legally cognizable interest in the outcome, the action is considered moot. Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998) (citations omitted). The "basic question" in determining mootness is "whether there is a present controversy as to which effective relief can be granted." Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988) (citation omitted). Where the claim is moot, courts no longer have jurisdiction to resolve the underlying dispute. Doe, 177 F.3d at 797-798 (citations omitted).

As mootness pertains to a federal court's subject matter jurisdiction under Article III, the issue is properly raised in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000); FED.R.CIV. P. 12(b)(1). The party asserting mootness bears the heavy burden of establishing that there is no effective relief that the court can provide. Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (citations omitted). Rule 12(b)(1) attacks on jurisdiction can be either facial, confining the inquiry to allegations in the complaint, or factual, permitting the court to look beyond the complaint. Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003) (citing White, 227 F.3d at 1242).

Where a party does not allege an injury that a court ordinarily has the power to remedy, a court may have jurisdiction if one of several recognized exceptions to the mootness doctrine applies. Doe, 177 F.3d at 798. As will be discussed, there is no longer a present "live" controversy between SDCOE and Pollock, and unless an exception applies, this part of the case is moot. Two exceptions have been raised by SDCOE.

"A case otherwise moot will still be heard if it presents an issue that is capable of repetition while evading review." Pub. Util., 100 F.3d at 1459 (citing Honig v. Doe, 484 U.S. 305, 318-20 (1988); Roe v. Wade, 410 U.S. 113, 125 (1973)). This exception applies in "exceptional circumstances." Id. (citation omitted). In order to fit within the exception, the controversy must satisfy two requirements: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Id. (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)).

A second exception to the mootness doctrine exists where a party would suffer "collateral legal consequences if the actions being appealed were allowed to stand." Pub. Util., 100 F.3d at 1460; see also City of Colton v. Am. Promotional Events, Inc.-West, 614 F.3d 998, 1006 (9th Cir. 2010) (in the appellate context, appeal not moot where "a party can demonstrate that a lower court's decision, if allowed to stand, may have collateral consequences adverse to its interests.") (citation omitted); Dep't of Educ., State of Haw. v. Rodarte ex rel. Chavez, 127 F.Supp.2d 1103, 1113-1114 (D. Haw. 2000) (applying collateral consequences analysis to a mootness challenge to an IDEA appeal). The exception has been applied where the primary injury has passed, but there remains a "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." E.E.O.C. v. Fed. Exp. Corp., 558 F.3d 842, 847 (9th Cir. 2008) (quoting In re Burrell, 415 F.3d 994, 999 (9th Cir. 2005)) (exception applied after party complied with administrative subpoena for investigation whose validity was challenged).

The collateral consequences exception does not apply every time there is a "mere possibility of continuing present adverse effects." Pub. Util, 100 F.3d at 1460 (citation and internal quotation marks omitted). The collateral consequences are required to be legal. Id. at 1461 (citation omitted). The doctrine is most commonly applied in habeas corpus proceedings. Id. at 1460. Indeed, application of this exception outside of criminal appeals and habeas petitions is "relatively rare." Samsung Elecs. Co., Ltd. v. Rambus, Inc., 398 F.Supp.2d 470, 477 (E.D. Va.2005). The Ninth Circuit has applied the doctrine to conclude that an appeal was not moot where a reversal would put the party "on better footing with regard to limitations defenses, which is a collateral consequence of the type that suffices to defuse a claim of mootness.'" City of Colton, 614 F.3d at 1006 (quoting Connectu LLC v. Zuckerberg, 522 F.3d 82, 89 (1st Cir. 2008)).

B. Declaratory Relief

The Declaratory Judgment Act (DJA) authorizes a court of the United States to grant declaratory relief where there is "a case of actual controversy within its jurisdiction, " subject to certain exceptions. 28 U.S.C. § 2201(a). The court may "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." Id.

The purpose of declaratory relief is to "afford an added remedy to one who is uncertain of his rights and who desires an early adjudication thereof without having to wait until his adversary should decide to bring suit, and to act at his peril in the interim." Shell Oil Co. v. Frusetta, 290 F.2d 689, 692 (9th Cir. 1961). Declaratory relief may be sought by "any interested party" involving an actual controversy that "has not yet reached a stage at which either party may seek a coercive remedy and in cases where a party who could sue for coercive relief has not yet done so." Seattle Audubon Soc. v. Moseley, 80 F.3d 1401, 1405 (9th Cir. 1996) (citation omitted).

The DJA does not extend new jurisdiction to federal courts. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Lear Siegler, Inc. v. Adkins, 330 F.2d 595, 599 (9th Cir. 1964). Instead, the DJA makes a new remedy available where jurisdiction otherwise exists. Skelly Oil, 339 U.S. at 671; Lear Siegler, 330 F.2d at 599.

Jurisdiction to issue a declaratory judgment exists only where there is an "actual controversy." Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994) (citation omitted). The Ninth Circuit has held that this requirement is identical to the "case or controversy" requirement in Article III. Id. (citation omitted). Accordingly, before issuing declaratory relief, a court must determine whether there is an "actual controversy" within its jurisdiction. Id. If a case or controversy exists, a court has discretion in deciding whether or not to entertain declaratory judgments. Id. at 143-44 (noting that the statute states that courts "may" issue declaratory relief). A declaratory judgment action is justiciable if "there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Seattle Audubon Soc., 80 F.3d at 1405 (quoting Nat'l Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562, 565 (9th Cir. 1987)).

In general, any non-frivolous assertion of a federal claim suffices to establish federal question jurisdiction, even if that claim is later dismissed on the merits. Cement Masons Health & Welfare Trust Fund for N. Cal. v. Stone, 197 F.3d 1003, 1008 (9th Cir. 1999) (discussing Bell v. Hood, 327 U.S. 678, 682 (1946)). The Ninth Circuit has found that where a plaintiff made a claim for past costs under a federal statute, which was later dismissed, the court nonetheless had jurisdiction over a nonfrivolous claim for declaratory relief as to future costs. City of Colton, 614 F.3d at 1004, 1006.


A. First Cause of Action - IDEA Appeal

Pollock asserts that SDCOE can no longer obtain effective relief by appealing the ALJ's decision, and therefore the claims against her are moot. In summary, she asserts that the relief awarded by OAH has already been given to M.P., and cannot be given back. (Mot. at 7). Namely, the occupational therapy assessment has taken place, the IEP meeting was conducted, and the RTC placement was implemented. ( Id. ) Pollock further asserts that a mere reversal of the OAH decision is not "effective relief." ( Id. )

SDCOE does not appear to dispute that it cannot receive effective relief for these specific injuries. Instead, SDCOE asserts that the "capable of repetition, yet evading review" and "collateral legal consequences" exceptions to the mootness doctrine apply. (Opp'n at 1). SDCOE asserts that failure to review this lawsuit would strip SDCOE of any ability to challenge the misapplication of the law, and argues that Pollock's motion "ignores the very live controversy between SDCOE and the other defendants." ( Id. )

i. Capable of Repetition, Yet Evading Review

SDCOE argues that the relevant statutes and regulations render this situation capable of repetition, yet evading review.

a. Action Too Short in Duration to be Fully Litigated

As discussed above, in order to fit the exception, the controversy must be "in its duration too short to be fully litigation prior to its cessation or expiration." Pub. Util., 100 F.3d at 1459. SDCOE argues that the relevant statutes and regulations create such a situation here.

The federal IDEA allows a "party aggrieved by the findings and decision" of an IDEA administrative due process hearing to bring a civil action in state or federal court. 20 U.S.C. § 1415(i)(2)(A). Such an action must be brought within 90 days of receipt of the decision. 20 U.S.C. § 1415(i)(2)(B) (requiring a party bring an action within the time allowed by a state, if the state has an explicit time limitation for actions under the subchapter); CAL. EDUC. CODE § 56505(k) ("An appeal shall be made within 90 days of receipt of the hearing decision.").

SDCOE points to the "stay put" requirements which "ensure that the child is not treated as a ping-pong ball, ricocheting between placements with each new ruling in the dispute between the parents and school." Ashland Sch. Dist. v. Parents of Student E.H., 583 F.Supp.2d 1220, 1228-29 (D. Or. 2008). During the pendency of administrative or judicial IDEA proceedings, the child remains in the then-current educational placement, unless the State or local agency and the parents of the child otherwise agree. 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a). However, when a hearing officer in a due process hearing agrees that a change of placement is appropriate, that placement is treated as such an agreement between the State and the parents. 34 C.F.R. § 300.518(d). SDCOE asserts that it was therefore required to implement the decision. (Opp'n at 3). SDCOE cites to Ashland School District. v. Parents of Student E.H ., in which an Oregon district court stated that after an administrative proceeding resulted in a determination that the proper placement is a private facility, the district was required to fund the placement from the date of the decision and continuing throughout the pendency of the litigation. 583 F.Supp.2d at 1229.

SDCOE contends that, under Pollock's interpretation of the law, complying with the "stay put" provisions would read the right to judicial review out of the law. (Opp'n at 3). SDCOE was ordered to place M.P. within 45 days. SDCOE contends that the "stay put" requirements prevent them from delaying the placement in order to avoid mootness and seek judicial review. ( Id. at 4).[1] That is to say, the statutory and regulatory scheme requires SDCOE to immediately take the actions which, according to Pollock, render the case moot.

Pollock contends that the exception does not apply because the action was "fully litigated" before the OAH. (Mot. at 8). She provides no authority to suggest that the administrative hearing that produced the decision defeats the application of the exception. However, the Ninth Circuit has applied the exception where judicial review of an administrative decision would be difficult to obtain before the underlying activity ended. Alaska Fish and Wildlife Fed'n and Outdoor Council, Inc. v. Dunkle, 829 F.2d 933, 939 (9th Cir. 1987) (apply exception in reviewing one-year agreements where it was "difficult to obtain judicial review" during duration of agreements). Indeed, an exception aimed at cases "evading review" can hardly be inapplicable on the grounds that review is not required, particularly where review of the decision is explicitly authorized. The OAH hearing rendered a decision after the parties argued the merits, and Congress explicitly authorized a right to judicial review of that decision. 20 U.S.C. § 1415(i).

It is apparent that such a short window prevents SDCOE from obtaining judicial review of the order before it is required to comply with the order. Pollock does not dispute that SDCOE cannot delay implementing the placement to preserve judicial review. It is also apparent that judicial review could not be completed in the time before the placement is made. Even if a party did not use the full 90 days provided by statute, filed an appeal immediately upon receiving the decision, and delayed implementing the decision until the final day allowed by the ALJ's order, proper review of complex legal issues could not be completed before placement.

Pollock responds to SDCOE's arguments by contending that judicial review is not evaded under the circumstances of this case. Pollock argues that SDCOE's "true claims" are against the County and Regional Center, and that SDCOE has other avenues to obtain judicial review of those legal issues. (Reply at 1, 3). Specifically, SDCOE's Amended Complaint also seeks declaratory relief and damages from the County and Regional Center based upon its argument that these entities were required to place M.P., and not SDCOE. Pollock points to a footnote in SDCOE's Opposition Brief in which it concedes that "It is possible that the Court will not need to reach the IDEA appeal once it considers whether the County or the Regional Center were obligated to residential [sic] place M.P. before or instead of SDCOE." (Reply at 3 n.2); (Opp'n at 10 n. 5). The footnote, placed in SDCOE's argument that the IDEA appeal has collateral consequences that constitute a separate exception to mootness, then contends that the IDEA should not be dismissed because those issues have not yet been resolved. (Opp'n at 10 n. 5). However, the Court notes that the use of the word "possible, " indicating that SDCOE does not clearly concede that the IDEA appeal will not need to be determined to resolve the other issues.

Pollock points to Vegas Diamond Props., LLC v. FDIC, 669 F.3d 933 (9th Cir. 2012). The Ninth Circuit dismissed as moot an appeal of an order granting the dissolution of a temporary restraining order, where the properties in question were sold during the pendency of appeal. Id. at 934. The Vegas Diamond Court held that the conduct did not evade review where the plaintiffs were allowed to bring damages actions for the alleged unlawful conduct. Id. at 937. The claims did not evade review, even though the plaintiffs predicted that the money damages they might recover would be inadequate. Id.

The question is thus whether the conduct complained of actually would "evade review" if this Court does not hear the IDEA appeal. SDCOE emphasizes that it not only seeks a reversal of the order with respect to M.P., it seek a ruling on "its obligations to provide special education and related services to disabled children generally when they enter into its jurisdiction through confinement in Juvenile Hall." (Opp'n at 7). SDCOE claims, among other things, that the ALJ erred as a matter of California law. ( Id. ) SDCOE asserts that because it asserts an error of law, it does not matter that the factual circumstances may be different in the future. ( Id. at 7-8). In sum, it is clear that the potentially-recurring issue is a general legal question. Critically, it is not at all clear that this question can only be resolved through this IDEA appeal. Plaintiff seeks contribution and indemnification from the County and Regional Center in other claims, allowing SDCOE to raise many of its legal arguments. There is no indication that an IDEA appeal is the only vehicle for SDCOE to obtain an authoritative interpretation of a potentially-recurring legal issue. However, SDCOE has not directly briefed this issue before this Court. Regardless of the outcome on evading review, the application of this exception requires that both prongs of the test be satisfied. As this Court finds that this exception is inapplicable based on its failure to meet the requirements of the second prong, this Court will not unnecessarily delve into SDCOE's possible legal strategies with regard to the first prong.

b. Reasonable Exception of Complaining Party of Being Subjected to Same Action

In order to qualify for the exception, there must also be a reasonable expectation that the complaining party will be subjected to the "same action" again. Pub. Util., 100 F.3d at 1459.

1. Reasonable Expectation that SDCOE Will Face this Issue with Respect to M.P.

Pollock asserts that there is no reasonable expectation of repetition, as M.P. would again need to be detained in Juvenile Hall, and would then again need to be placed in an RTC from Juvenile Hall. (Mot. at 8). Pollock claims that this is too speculative. ( Id. ) She cites to the Supreme Court's statement that: "for purposes of assessing the likelihood that state authorities will reinflict a given injury, we generally have been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." ( Id. ) (quoting Honig, 484 U.S. at 320). Although the procedural posture of this case differs from the cases discussed in Honig, there are no special reasons for this Court to conclude that M.P. will commit a new offense that will lead him to be placed in Juvenile Hall, and then require an RTC placement. SDCOE does not present argument that there is a reasonable expectation that he will be detained in Juvenile Hall for an alleged new crime.

However, SDCOE points out that the original charges against M.P. have not been dismissed. (Opp'n at 6). SDCOE argues that M.P. could return to Juvenile Hall once his case is active again. ( Id. ) This is insufficient. Although M.P.'s return at some point because of the pending case is certainly possible, a recurrence of this issue would require that M.P. also need to be released from Juvenile Hall and then placed again in an RTC. SDCOE argues only that M.P. may return, and does not suggest any scenarios in which a new placement might be required. In addition, SDCOE's specific contentions in this case relate to its argument that M.P.'s need for an RTC was related to other factors, such as the threat to public safety and the need to restore him to competency. A recurrence would seemingly require M.P. to be re-detained in Juvenile Hall, then removed from Juvenile Hall again under circumstances where a RTC may be sought for non-educational reasons. Although it is possible that a situation could arise wherein M.P. returns to Juvenile Hall, there is no reasonable expectation that he will require another residential placement raising similar legal issues.

2. Reasonable Expectation that SDCOE Will Be Subject to the Same Action by Another Student

SDCOE asserts that what matters is that the complaining party will be subject to the same issue. SDCOE claims that the "real issue is whether there is a reasonable expectation that SDCOE will be aggrieved by a similar application of the IDEA." (Opp'n at 6). SDCOE argues that this Court may correct the announcement of an incorrect legal rule, and that changes in the factual posture of future cases involving other students would not significantly alter the legal issue. (Opp'n at 7-8 (citing Deer Valley Unif. Sch. Dist. v. L.P. ex rel. Schripsema, 942 F.Supp.2d 880, 888-89 (D. Ariz. 2013) (reversing finding of a procedural violation in case where no mootness issue was raised))).

Pollock asserts that this exception requires that the same parties be involved, and the chance of recurrence of this issue with unknown future special education students does not qualify. Pollock argues that there is no reason to force M.P. to step into the shoes of these potential future students and defend disputes that have not been asserted. (Reply at 1).

The test requires that the same complaining party be subject to the "same action." Pub. Util., 100 F.3d at 1459. The disagreement between SDCOE and Pollock essentially amounts to a disagreement about whether the "same action" must be carried out by the same party. In many of the cases addressing this exception, the defendant has a policy or practice that the plaintiff seeks to challenge. Accordingly, there is a reasonable expectation that the same action will be taken by the defendant in question. In this case, the defendant in question, Pollock, is likely to be a one-time actor, but is being supported by a repeat player, the County. That is to say, the general issue of "who pays" is capable of repetition, and the same party is likely to ultimately be behind it, but the actual defendant here in unlikely to be involved. The actual defendant in this matter therefore seeks to be dismissed, leaving the repeat players to litigate.

In support of its argument that it is sufficient that SDCOE will be aggrieved by the same issue, SDCOE primarily discusses D.C. Circuit law. SDCOE discusses Jenkins v. Squillacote, 935 F.2d 303 (D.C. Cir. 1991), in which a school district and a child's parents disagreed about the proper placement of the child. Id. at 305. An ALJ twice rejected the placement notice provided by the school district as insufficient. Id. at 305-06. After the second rejection, the ALJ ordered placement at the parents' preferred school because the school year was imminent. Id. at 306. The district sought review, challenging the ALJ's determinations about the sufficiency of the notices. Id. The parents filed a motion to dismiss. Id. The district court took the matter under advisement for 10 months, then found that the case was moot because the school year had passed. Id. On appeal, the D.C. Circuit determined that the case fit the exception for cases that are capable of repetition, yet evading review. Id. at 307-08. The D.C. Circuit first concluded that a one-year placement order was too short to be fully litigated prior to expiration. Id. at 307. The Jenkins Court found that there was a reasonable expectation that the district could be aggrieved by a similar application of the notice requirement. Id. at 308. Although the court noted that the parties agreed that this was a recurring problem, the court also specifically noted that it was likely to be a recurring legal question "with respect to the District's educational plans for the very pupil whose parents are now before this Court." Id. It therefore concluded that there was a reasonable expectation that the district would attempt to place the same child in another school, and confront the same notice problem. Id . Jenkins is therefore distinguishable.

SDCOE points to District of Columbia v. Doe, 611 F.3d 888 (D.C. Cir. 2010), in which the D.C. Circuit discussed Jenkins in a manner that emphasized that the Jenkins Court had considered the impact of the issue in cases involving other children, and applied the exception to a case in which the district was likely to be aggrieved by a similar application of the IDEA. Id. at 895. To the extent that D.C. Circuit case law interprets the second prong of the exception to allow review where there is a reasonable expectation that the conduct is likely to occur with respect to other parties not present, but not to the defendant in question, such a conclusion is not binding precedent on this Court. The Doe court extended the Jenkins precedent with little explanation regarding the second prong and cited to authority where the party seeking review faced a problem that was capable of repetition by the particular defendant. Id. at 395; see Honig, 484 U.S. at 322-23 (applying exception to student's claims where review was only sought with regard to an injunction against the state defendant and "respondent would be faced with a real and substantial threat of such action in any California school district in which he enrolled."); DeVries by DeBlaay v. Spillane, 853 F.2d 264, 268 (4th Cir. 1988) (applying exception where student's IEP had been superseded by a new IEP). This Court determines that the exception does not apply in the case at hand, where future instances of the action capable of repetition are unlikely to involve the defendant being forced to litigate.

In Honig v. Doe , the Supreme Court discussed how certain cases:

differ from the body of our mootness jurisprudence not in accepting less than a probability that the issue will recur, in a manner evading review, between the same parties; but in dispensing with the same-party requirement entirely, focusing instead upon the great likelihood that the issue will recur between the defendant and the other members of the public at large without ever reaching us.

484 U.S. at 335-36 (emphasis in original). That is to say, the Supreme Court acknowledged the existence of at least some cases which deviate from the "same-party requirement" where the problem might recur with the same defendant. The Honig Court then noted that even these cases are arguably limited to their facts. Id. at 336. An underlying assumption of the jurisprudence appears to be that the party accused of some unlawful activity will do so in the future. At least one district court in this circuit has found that the exception is "clearly inapplicable" in an IDEA case where the student's graduation precluded the repetition of another controversy with respect to that student's rights. Rodarte, 127 F.Supp.2d at 1113 (refusing to review the award of compensatory education).

Such an interpretation comports with the fundamental values and assumptions of American law. In claiming an exception to the mootness doctrine, a party is asking the court to force a party which is not engaged in a live controversy, to undergo the substantial stresses and burdens of litigation, because it benefits the party asserting the exception. The equities of compelling a party who is alleged to have engaged in unlawful activity and who may do so again, vary significantly from the equities of imposing litigation on a party who poses no such threat.

In the case at hand, SDCOE may well wish to pursue its appeal and is apparently willing to undergo the hassle and expense of litigation, but Pollock has not so volunteered. SDCOE cannot simply select a student with whom it no longer has a dispute, and with whom it may never again have a dispute, and force him or her to represent students who may someday be in the situation that the student was once in. As there is no reasonable expectation that the situation will arise again as to Pollock and M.P., there is no concern that Pollock or M.P. will evade review in the future unless compelled to litigate.

This conclusion is supported by core concerns underlying Article III requirements. As SDCOE appears to concede, Pollock cannot give back any of the relief granted by the ALJ. The only possible impact on Pollock is the purely speculative possibility that if SDCOE wins on the legal issue and is able to obtain damages, the other defendants may seek contribution from Pollock. Without a non-speculative likelihood that the case will repeat with these parties, it is difficult to see how Pollock would be motivated to adequately litigate the serious and complex issues in this matter. Where the party being forced to litigate without a live controversy is a party expected to conduct the activity in question in the future, the party has incentive to litigate the merits vigorously. By contrast, a party who is not expected to be in the situation in the future has no such incentive. SDCOE raises potentially complex questions about state and federal law whose resolution has the potential to significantly impact the way the parties handle the expensive and delicate problem of children in M.P.'s past situation. This Court can hardly expect such questions to be fully and vigorously litigated by a party that may not feel any effects. The serious consequences of forcing an unmotivated party, such as Pollock, to defend an action are illuminated by the considerations underlying standing doctrines. The Ninth Circuit has recognized that "Nonparties to litigation may suffer directly from poorly considered decisions reached in actions brought by parties who may not have adequate incentives or motives to effectively present a legal challenge, particularly in a case such as this that involves important public rights." Townley v. Miller, 722 F.3d 1128, 1135 (9th Cir. 2013); see also Baker v. Carr, 369 U.S. 186, 204 (1962) (describing the question of standing as "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions?"); U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396-397 (1980) (discussing the importance of the "personal stake" aspect of mootness in assuring that federal courts are presented with disputes they are capable of resolving).

c. Conclusion

Although SDCOE may well encounter the same general funding question with respect to other children, it is not likely to face this question with respect to M.P. As such, the requirements of the second prong of the exception are not met, and the exception does not apply. This Court will not force Pollock to litigate a case in which neither she nor her child have an adequate personal stake, and will not leave important and complex questions to be defended by a party with little incentive to do so.

ii. Collateral Legal Consequences

SDCOE also asserts that this Court should find that the collateral legal consequences of the appeal create an exception to the mootness doctrine. SDCOE argues that resolution of the appeal will affect the outcome of SDCOE's claims against the County and Regional Center, as well as the defenses those parties have asserted against SDCOE. SDCOE points to the fact that the defendants have sought to persuade this Court to resolve the IDEA appeal first, on the grounds that the resolution of the appeal is dispositive of the other claims. (Opp'n at 11; Pl. Ex. A at 3 ("dispositive"); Pl. Ex. B at 3 ("remaining claims are at least in part dependent upon the Court's findings on the first cause of action.")).

a. Contribution Claims

SDCOE argues that if it successfully wins a reversal of the the OAH decision, the outcome will affect its claims for contribution against the County and Regional Center. SDCOE argues that the ALJ improperly failed to consider whether the placement was required for "medical, social, or emotional problems that is necessary quite apart from the learning process." (Opp'n at 9 (quoting Clovis Unif. Sch. Dist. v. Cal. Off. of Admin. Hrgs., 903 F.2d 635, 643 (9th Cir. 1990))). If SDCOE prevails, it asserts that the County and Regional Center could be responsible for at least some costs under California law. ( Id. at 9-10). This is to say, if SDCOE prevails on the appeal, it argues it will be able to seek contribution.

SDCOE provides no authority to support an argument that it can force a party to litigate in order to allow SDCOE to more effectively litigate separate claims against another party. The collateral consequences exception has been described as applying to "situations where a petitioner would suffer collateral legal consequences if the actions being appealed were allowed to stand." Pub. Util., 100 F.3d at 1460; see also Koppers Indus., Inc. v. U.S.E.P.A., 902 F.2d 756, 758 (9th Cir. 1990) (exception did not apply where there were no collateral continuing legal disputes to which the execution of the administrative warrant directed to the plaintiff had given rise, and noting the lack of citations or enforcement actions against the plaintiff under CERCLA). This is readily seen in the habeas corpus context, where the petitioner suffers the legal consequences of conviction.

With respect to the contribution claims, the legal consequences claimed by SDCOE appear to be, not that SDCOE is subject to some legal impediment or litigation, but that SDCOE will be impeded in conducting litigation that it has initiated. SDCOE does cite statute of limitations cases in which the moot case affected separate litigation. In City of Colton, the plaintiff faced a potential statute of limitations bar with respect to certain defendants, and the Ninth Circuit found that a reversal might put the plaintiff on a better footing with regard to the limitations defenses. 614 F.3d at 1006. The City of Colton case quoted from a First Circuit decision, Connectu LLC v. Zuckerberg. Id. (quoting 522 F.3d at 81). SDCOE cites to Connectu as an application of the exception where the statute of limitations defenses were raised by other defendants. (Opp'n at 8 (citing 522 F.3d at 88)). At the outset, the Ninth Circuit did not adopt the entire holding of Connectu in City of Colton, and the facts of City of Colton involved the same parties. In the case at hand, none of the adverse legal consequences come from Pollock, and the decision does not affect any non-speculative future administrative or judicial proceedings initiated by Pollock. Additionally, the collateral consequences at issue are markedly different. A statute of limitations defense may preclude a party from bringing claims at all. There is no indication here that SDCOE will not be able to pursue contribution, declaratory relief, or other possible means of obtaining the relief that it seeks, either in this court or another. SDCOE did not present argument that Pollock needs to be involved in order to litigate the declaratory relief claims against the other defendants. Finally, adopting SDCOE's argument would allow a plaintiff to force an uninterested party to litigate simply to help the plaintiff better pursue separate cases. This practice would be inconsistent with the case or controversy requirement imposed by Article III. See Samsung Elecs., 398 F.Supp.2d at 478 (declining to apply exception where it would convert narrow exception into a full scale breach of Article III case or controversy requirement). Furthermore, Pollock correctly points out that parties may attempt to defeat mootness simply by bringing additional claims. SDCOE asks this Court to radically extend the application of this narrow exception to encompass new situations involving important considerations not present in the cases cited by SDCOE. This Court declines to do so.

Furthermore, the other adverse effect cited by SDCOE with respect to contribution is that it will be forced to pay for future placements of other students in RTCs. Although such a financial consequence would be real and negative, it is not apparent that such consequences would be "legal." See Pub. Util., 100 F.3d 1460-61 (no adverse legal consequences where failure to decide issues would force discounting of natural gas rates and lost revenues).

b. Declaratory Relief Claims

SDCOE also asserts that the IDEA appeal has legal consequences for the declaratory relief claims. This argument fails for similar reasons. SDCOE itself acknowledges that the declaratory relief claims will not necessarily fail if the appeal is dismissed. (Opp'n at 13-14). On the question of legal consequences for the declaratory relief claims, SDCOE argues the importance of the claims, but does not explain how a reversal of the appeal is necessary to them. In its discussion, SDCOE discusses the fact that it will face future disagreements with the County and Regional Center, but not Pollock.

SDCOE also argues that its efforts to seek declaratory relief would be collaterally affected if the OAH decision were allowed to stand without review. ( Id. at 11). However, this concern is addressed below.

c. Financial Consequences

SDCOE also points to financial consequences for all defendants. Although SDCOE admits that this does not directly affect SDCOE, SDCOE points out that reversal of the OAH decision could lead the County to seek reimbursement from Pollock. ( Id. at 12). However, these financial consequences are entirely speculative and depend on an intervening decision by the County which it may never make. Even if future efforts to collect from Pollock may be termed collateral legal consequences, they are far too speculative. See Koppers Indus., 902 F.2d at 758 (denying application of collateral legal exception based on speculative contingency that issues may arise).

d. Affirmative Defenses and Counterclaims

SDCOE points to the fact that it faces affirmative defenses and counterclaims asserted by the other defendants based upon the administrative decision at issue in the appeal. (Opp'n at 10). Specifically, SDCOE argues that both the County and Regional Center assert as affirmative defenses that (1) it acted in good faith and/or in reliance on the OAH decision, and (2) that SDCOE's claims are barred by res judicata and/or collateral estoppel based on the OAH decision. (Docket No. 18 ¶¶ 43, 47, 48; Docket No. 24 ¶¶ 49, 53, 54). Regional Center's counterclaim seeks a determination of the merits of the OAH decision. (Docket No. 30 ¶ 6, Prayer for Relief). SDCOE points to the fact that both parties sought a stay of discovery while the IDEA appeal was litigated, on the basis that resolving the IDEA claim was "dispositive" of the claims against them. (Opp'n at 11 (citations omitted)).

Normally, these claims might plausibly be construed as adverse collateral legal consequences. However, this situation has been addressed by courts, and resolved in a different fashion.

The Supreme Court and the Ninth Circuit have recognized that collateral estoppel has legal consequences from which a party may continue to suffer harm after a claim has been rendered moot. In re Burrell, 415 F.3d at 999 (citation omitted). The Supreme Court has stated that "[a] party who seeks review of the merits of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced to acquiesce in the judgment." U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 25 (1994)(citation omitted). The Supreme Court has therefore recognized a limited practice of vacating lower court decisions and remanding with directions to dismiss, in situations where the party seeking relief from the judgment below did not cause the mootness by voluntary action. See id. at 22-25; In re Burrell, 415 F.3d at 999-1000.

This practice indicates that the fact that a claim has become unreviewable and may have negative legal consequences, does not by itself serve as an exception to mootness. Rather than create an exception that allows courts to review a moot matter, courts avoid the perils of deciding moot cases while eliminating the collateral estoppel effects. This established practice weighs heavily against finding an exception to mootness based on the affirmative defenses and counter-claims presented here.

It also suggests the appropriate solution to the adverse consequences pointed to by SDCOE. In hearing the IDEA appeal, this Court acts in an appellate capacity, and the same considerations regarding the effects of an unreviewable opinion are applicable here. Vacateur in moot cases has been employed by district courts sitting in an appellate capacity, including in review of IDEA cases. L.K. ex rel. Henderson v. N.C. State Bd. of Educ., No. 5:08-cv-85-BR, 2011 WL 861181, at *4-5 (E.D. N.C. Feb. 18, 2011), adopted by 2011 WL 861154 (E.D. N.C. Mar. 9, 2011); Van Alstyne Indep. Sch. Dist. v. Andre S., No. 4:09-cv-89, 2010 WL 715560, at *7 (E.D. Tex. Feb. 23, 2010).

The Supreme Court has noted the equitable nature of vacatur in this circumstance. U.S. Bancorp, 513 U.S. at 25. In determining whether to vacate the lower court decision, the primary inquiry is "whether the party seeking relief from the judgment below caused the mootness by voluntary action." In re Burrell, 415 F.3d at 999 (quoting U.S. Bancorp, 513 U.S. at 24). Vacatur may be denied where a party voluntary forfeits his legal remedy, such that the judgment is not unreviewable, but simply unreviewed by his own choice. U.S. Bancorp, 513 U.S. at 25. Where there are no circumstances to cause fairness and equity to tilt against vacatur, the "ordinary practice" is to "clear the path for future relitigation of the issues." See Alvarez v. Smith, 558 U.S. 87, 97 (2009); United States v. Munsingwear, 340 U.S. 36, 40 (1950).

The IDEA appeal was mooted because SDCOE was required by law to implement the OAH decision without waiting for judicial review. SDCOE, the party seeking review, took no voluntary action to moot this case. SDCOE has done nothing to disentitle it to equitable relief from the adverse consequences of an unreviewable decision. As such, it is appropriate for this Court to vacate the decision of the ALJ and remand with instructions to dismiss.

iii. Conclusion

SDCOE argues that it is not the proper party to pay for the placement of a student such as M.P. In its efforts to impose responsibility on other parties, SDCOE seeks to force Pollock to continue to litigate. SDCOE may find it helpful to its litigation posture to impose the burdens of litigation on a student and a parent. However, SDCOE's live controversy is with the County and Regional Center, not with M.P. or his mother. SDCOE must therefore pursue its claims without involving a party with whom it has no live dispute and which cannot give it effective relief.

Based on the foregoing, the first cause of action is DISMISSED WITHOUT PREJUDICE AS MOOT. The case does not fit the mootness exception for cases capable of repetition while evading review because there is no reasonable expectation that the circumstances giving rise to the need for MP's RTC placement will re-occur. Moreover, SDCOE presents no collateral legal consequences that justify application of the narrow second exception to mootness. The negative consequences of the unreviewable decision will be alleviated by vacating the decision and dismissing the underlying case. The decision of the ALJ is therefore VACATED and this Court REMANDS the appeal with instructions to the ALJ to dismiss the matter.

B. Declaratory Relief Actions

Pollock also seeks to be dismissed as a defendant from the second and third claims for declaratory relief. SDCOE seeks declaratory relief "related to the legal rights and duties of the SDCOE and the County" in the second claim, and "related to the legal rights and duties of the SDCOE and the San Diego Regional Center" in the third claim. (Am. Compl. ¶¶ 42, 50). SDCOE has named Pollock and the County as defendants in the second claim, and Pollock and Regional Center as defendants in the third.

SDCOE makes two arguments. First, it argues that the declaratory judgment actions are not moot because the two exceptions discussed above apply to this case. Upon review of the claims, this Court finds that its reasons for finding claim one moot also apply to the declaratory relief claims. There is no reasonable expectation that SDCOE will face these issues again with respect to Pollock or M.P., and SDCOE does not point to any collateral legal consequences justifying application of an exception in the declaratory relief actions. SDCOE does not raise new arguments regarding these exceptions with respect to the declaratory relief actions. However, SDCOE also argues that this Court has subject matter jurisdiction over the declaratory judgment claims even without the IDEA appeal.

Declaratory relief as to Pollock is only available if there is an actual case or controversy in this jurisdiction. Am. States Ins. Co., 15 F.3d at 143. No such controversy exists in this case. SDCOE does not ask this Court to grant declaratory relief as to the legal rights and duties of SDCOE and Pollock or M.P. Examination of the claims reveals that Pollock is alleged to deny SDCOE's contentions about M.P.'s status and the responsibilities of the different parties. She is also alleged to be potentially responsible for certain costs. Declaratory relief would have no apparent direct impact on Pollock, who has no control over either entity.

SDCOE insinuates that Pollock has a "direct interest in the outcome" because she might be asked to bear some responsibility for residential placement if SDCOE prevails. (Opp'n at 14). This does not create a "controversy" with Pollock. Such effects are indirect and purely speculative. They would require independent decisions by the County or Regional Center to seek money from Pollock in a separate action. Such consequences are speculative, and SDCOE does not argue that this Court will be making any decisions regarding financial responsibility for Pollock. SDCOE cites no precedent for compelling Pollock to be involved in litigation that does not directly affect her rights and obligations based on speculative, indirect financial consequences.

As discussed above, it is also mere speculation to say that SDCOE will ever find itself facing the same issue with Pollock. There is also no indication that SDCOE faces any threat of future litigation by Pollock regarding these issues. Even if this Court has jurisdiction to issue declaratory relief as to Pollock, it would exercise its discretion not to do so. This Court will not award relief that is not necessary to resolve a controversy between these parties and might bear only upon a speculative future controversy.

SDCOE cites to City of Colton, in which a court was found to have jurisdiction over a claim for declaratory relief as to future costs after the claims for past costs had been dismissed. City of Colton, 614 F.3d at 1004, 1006. However, nothing in City of Colton overrides the jurisdictional requirement for an "actual controversy." Here, there is no actual controversy between SDCOE and Pollock. SDCOE also contends that declaratory relief is necessary to avoid future demands from the County and disagreements with Regional Center. SDCOE does not explain why declaratory relief as to Pollock is necessary to resolve these issues.

SDCOE cites to precedent stating that the question is whether "the facts alleged under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." 3M Co. v. Avery Dennison Corp., 673 F.3d 1372, 1376 (Fed. Cir. 2012) (quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 (2007)). SDCOE has also pointed to the Ninth Circuit's statement in E.E.O.C. v. Federal Express Corp. that the collateral consequences exception applied because there was a "substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." 558 F.3d at 847 (quoting In re Burrell, 415 F.3d at 999). It argues that a federal court has a basic obligation to consider the merits and award relief on a claim where there is independent subject matter jurisdiction. (Opp'n at 13-14 (citing Countrywide Home Loans, Inc. v. Mortg. Guaranty Ins. Corp., 642 F.3d 849, 855-56 (9th Cir. 2011) (district court required to consider motion under the Federal Arbitration Act))). However, as SDCOE and Pollock are no longer "parties having adverse legal interests, " this does not justify the issuance of declaratory relief as to Pollock.

Based on the foregoing, SDCOE has articulated no basis for seeking declaratory relief against Pollock. The Second and Third Causes of Action are therefore DISMISSED WITHOUT PREJUDICE AS MOOT as to Pollock only.


SDCOE's first claim for relief is DISMISSED WITHOUT PREJUDICE AS MOOT, and the second and third claims for relief are DISMISSED WITHOUT PREJUDICE AS MOOT as to Pollock. The decision of the ALJ is VACATED and this Court REMANDS the appeal with instructions to the ALJ to dismiss the matter. This Court expresses no opinion as to the validity of any claims against the other Defendants in light of this Order.


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