Johnson v. Charlotte-Mecklenburg Schools Board of Education

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:19-cv-244-MOC-DCK

3:19-cv-257-MOC-DSC

STEPHANIE JOHNSON, individually )

and on behalf of T.S., )

)

)

Plaintiff, )

)

vs. )

)

CHARLOTTE-MECKLENBURG )

SCHOOLS BOARD OF EDUC., )

)

)

Defendant. )

___________________________________ )

STEPHANIE JOHNSON, individually )

and on behalf of A.J., )

)

)

Plaintiff, )

)

vs. )

)

CHARLOTTE-MECKLENBURG ) ORDER

SCHOOLS BOARD OF EDUC., )

)

)

Defendant. )

___________________________________ )

THIS MATTER comes before the Court on the following motions: a Motion to Dismiss,

filed by Defendant Charlotte-Mecklenburg Schools Board of Education, (Doc. No. 34), and on

the parties’ cross motions for summary judgment, (Doc. Nos. 29, 31).

I. BACKGROUND

A.J. and T.S. are former students of Renaissance West Academy, an elementary school in

the Charlotte-Mecklenburg school district. On August 28, 2018, and August 31, 2018, Plaintiff

filed due process petitions for both A.J. and T.S., alleging various denials of a free and

appropriate education (“FAPE”) and violations of the Individuals with Disabilities Education

Act, 20 U.S.C. § 1400 et seq. (“IDEA”) by Defendant Charlotte Mecklenburg Schools Board of

Education (“CMS”). (A.J. R. pp. 97-104; T.S. R. p. 172). CMS filed responses denying all

allegations in the underlying due process petitions and litigation commenced in the

administrative phase below at the Office of Administrative Hearings (“OAH”). (A.J. R. pp. 90-

96; T.S. R. pp. 189-96).

In A.J., CMS received a request for an IEE after the expiration of the one-year statute of

limitations. (Aff. Morris, A.J. R. pp. 195-96, ¶¶ 9-10, Ex. A). CMS notified Plaintiff that the

request for an IEE was not timely under the statute of limitations but offered to provide a

reevaluation. (Id.). Subsequently, A.J.’s IEP team met in November of 2018 and agreed to

conduct a re-evaluation. (Aff. Ross, A.J. R. pp. 200-56, ¶¶ 12 15, Exs. A, D, E, F).

In T.S., CMS also received a request for an IEE but at the time of receipt it had not

conducted an evaluation of T.S. (Morris Aff., T.S. R. pp. 9-10, ¶¶ 9-10, Ex. A). After the

commencement of litigation in both cases at OAH, CMS held IEP meetings for both A.J. and

T.S. As to A.J., on November 2, 2018, A.J.’s IEP team met to (a) update A.J.’s present level of

performance regarding her math skills, (b) update A.J.’s present level of performance and goals

regarding behavior, (c) continue to provide A.J. with the same special education services, time,

and locations as contained in her May 2018 IEP, and (d) continue to provide speech/language

services through a Related Services Support Description (“RSSD”). (Aff. Ross, A.J. R. p. 202, ¶

12, Ex. A, E). In addition, the IEP team determined that a re-evaluation was needed for A.J.

(Aff. Ross, A.J. R. p. 202, ¶ 13, Ex. D). Plaintiff provided consent for CMS to evaluate A.J. and

a new IEP was implemented effective November 7, 2018. (Aff. Ross, A.J. R. p. 202, ¶¶ 14-15,

Ex. D-F).

As to T.S., on November 2, 2018, CMS reconvened an IEP meeting to determine if she

should be evaluated for eligibility for special education and related services. (Aff. Ross, T.S. R.

p. 109, ¶ 15). At the meeting, the IEP team determined that there was sufficient evidence to

suspect a disability and that it was appropriate to conduct formal evaluations to determine

eligibility for special education services. (Aff. Ross, T.S. R. p. 109, ¶ 16). The IEP team’s

decision was based primarily on medical diagnoses, inconsistent response to interventions, and

current social/emotional concerns. (Aff. Ross, T.S. R. p. 109, ¶ 16, Ex. F). The IEP team

ordered multiple evaluations to be conducted. (Aff. Ross, T.S. R. p. 109, ¶ 15, Ex. F).

Plaintiff did not sign the Consent for Evaluation/Reevaluation form at the November 2,

2018 meeting, but informed the Team that she would take the form home to review. (Aff. Ross,

T.S. R. p. 109, ¶ 17). Plaintiff did not return the signed Consent to Evaluate form for T.S. until

November 28, 2018. (Aff. Ross, T.S. R. p. 109, ¶ 17, Ex. E). Plaintiff did not return the parent

rating scales or the social history; both responses are needed to fully evaluate T.S. (Aff. Ross,

T.S. R. p. 109, ¶ 17).

Subsequently, the parties entered into a Consent Scheduling Order and the Administrative

Law Judge (“ALJ”) held a summary judgment hearing in both cases. (A.J. R. pp. 2-3, 4-89; T.S.

R. pp. 79-80). At the summary judgment hearing, the ALJ found that Plaintiff failed to raise a

genuine issue of material fact as to any of the claims in both A.J. and T.S. and dismissed both

cases with prejudice. (A.J. R. pp. 108-10; T.S. R. pp. 81-84). As an alternative basis for relief,

the ALJ in both cases found that all claims were moot. (A.J. R. pp. 108-10; T.S. R. pp. 81-84).

Thereafter, a State Hearing Review Officer (“SHRO”) for the North Carolina Department

of Public Instruction (“DPI”) conducted an independent review of the ALJ’s Decision in A.J. and

T.S. (A.J. Supp. to Admin Record, pp. 1-8; T.S. R. pp. 1-5). The SHRO affirmed the ALJ’s

grant of summary judgment in its entirety for A.J. and reversed, in part, the ALJ's grant of

summary judgment in T.S. (A.J. Supp. to Admin Record, pp. 1-8; T.S. R. pp. 1-5). The SHRO

did not address the mootness issue in either case.

On June 3, 2019, Plaintiff filed federal lawsuits in this Court challenging the findings of

the ALJ and SHROs in both cases. The Court consolidated the cases on January 7, 2020. In

both cases, Plaintiff’s federal complaints seek only non-monetary relief, in the form of a remand

back to the ALJ for an evidentiary hearing, rather than monetary relief, such as compensatory

education or reimbursement for private educational services. On September 3, 2019, an attorney

for Plaintiff confirmed that both A.J. and T.S. were enrolled in the Craven County Schools,

another local education agency in North Carolina located in Craven County. (Aff. Clark, Ex. A).

II. STANDARD OF REVIEW

Under Rule 12(b)(1), the defendant may file a motion to dismiss based on a lack of

subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). Where a defendant files such motion, the

plaintiff bears the burden to prove that subject matter jurisdiction exists. Adams v. Bain, 697

F.2d 1213, 1219 (4th Cir. 1982). Additionally, a motion to dismiss for lack of subject matter

jurisdiction may be brought on the grounds that the complaint fails to allege sufficient facts to

invoke the court’s jurisdiction and, when made on those grounds, all the facts asserted in the

complaint are presumed to be true. Id.

III. DISCUSSION

Federal courts have limited subject-matter jurisdiction and “no jurisdiction to decide

moot cases because of the case or controversy requirement of Article III of the Constitution.”

Virginia ex rel. Coleman v. Califano, 631 F.2d 324, 326 (4th Cir. 1980). Pursuant to Federal

Rule of Civil Procedure 12(h)(3), “[i]f the court determines at any time that it lacks subject

matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3); see Scott v.

Wells Fargo Home Mortg., Inc., 326 F. Supp. 2d 709, 719 (E.D. Va. 2003) (“The Court must

raise issues of subject matter jurisdiction sua sponte if it appears at any time that further exercise

of [the] Court’s jurisdiction may be improper.”).

The Supreme Court has held that the case or controversy requirement is not satisfied,

“when the question sought to be adjudicated has been mooted by subsequent developments….”

Flast v. Cohen, 392 U.S. 83, 95 (1968). To raise a cognizable claim in a federal court, a lawsuit

must be:

a real and substantial controversy admitting of specific relief through a decree of a

conclusive character, as distinguished from an opinion advising what the law

would be upon a hypothetical state of facts. However, moot questions require no

answer. Mootness is a jurisdictional question because the Court is not

empowered to decide moot questions or abstract propositions; our impotence to

review moot cases derives from the requirement of Article III of the Constitution

under which the exercise of judicial power depends upon the existence of a case

or controversy.

North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quotations and citations omitted).

In the special education context, a claim that a school district failed to provide a student

FAPE will be mooted upon the parties’ correction of the alleged violation, so long as there is not

a reasonable likelihood that the violation will reoccur. See generally Honig v. Doe, 484 U.S.

305, 317-19 (1988). When requested testing has been completed and a prior proposed IEP is

replaced by a subsequent IEP, there is no viable controversy and the court does not have

jurisdiction due to the parties lacking a legally cognizable interest in the outcome. See Sch. Bd.

of City of Norfolk v. Brown, 769 F. Supp. 2d 928, 953 (E.D. Va. 2010). Such a claim is moot

unless it is “capable of repetition, yet evading review.” Id.

In support of the motion to dismiss, Defendant asserts that during the pendency of both

lawsuits in federal court, A.J. and T.S. were withdrawn from CMS and enrolled in the Craven

County Schools, another local education agency in North Carolina. (Aff. Clark, Ex. A, ¶¶ 5-8,

Exs. 1-3). Defendant contends that these voluntary actions by Plaintiff deprive this Court of

subject-matter jurisdiction. The Court agrees. Federal courts have regularly found that when a

student moves out of a school district during the pendency of an IDEA claim in federal court, the

underlying claims are moot if the plaintiff has not sought monetary damages. Cf. Wagner v. Bd.

of Educ. of Montgomery Cty., 340 F. Supp. 2d 603, 608 (D. Md. 2004) (prospective relief was

moot in part because students had moved out-of-state) with Z.G. v. Pamlico Cty. Pub. Schs. Bd.

of Educ., 744 Fed. App'x 769, 779 n.15 (4th Cir. 2018) (unpublished) (parent’s IDEA claims not

moot where parent sought monetary relief in federal Complaint), and Brown v. Bartholomew

Consol. Sch. Corp., 442 F.3d 588, 597-98 (7th Cir. 2006) (where parents’ move to a new school

district rendered IDEA case moot, noting that a claim for damages in federal district court was

not a live controversy because the plaintiff parents failed to articulate a claim for monetary relief

(i.e., compensatory education) or reimbursement directly in their federal complaint). Here,

Plaintiff’s federal complaints in both cases merely request nonmonetary relief in the form of a

remand, not compensatory education or reimbursement for A.J.’s or T.S.’s educational services.1

(A.J. Compl., p. 7.; T.S. Compl., p. 7). Since Plaintiff chose not to pursue a claim for monetary

relief in this Court, there is no federal subject matter jurisdiction in this Court, and no practical

1 To the extent that Plaintiff argued at the hearing on the motion to dismiss that she, in fact, did

seek monetary damages in the form of reimbursement payments, the Court disagrees. Both

federal complaints sought the following forms of relief only: an “order annulling the decision of

the SRO dismissing the due process complaint”; an “order remanding this matter for an

evidentiary hearing before the ALJ”; “award to the plaintiffs costs, expenses and attorney’s

fees”; and “grant such other and further relief as the Court deems just and proper.”

reason to supply an advisory opinion that will not alter the parties’ legal relationship.

An exception to the general rule of mootness is “wrongs capable of repetition, yet

evading review.” Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam). This exception

applies only in “exceptional situations.’” Incumaa v. Ozmint, 507 F.3d 281, 289 (4th Cir. 2007)

(quoting Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). Two circumstances must be

“simultaneously present” for the exception to apply: “(1) the challenged action [is] 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.”

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481 (1990) (quoting Murphy, 455 U.S. at 482). For

there to be a “reasonable expectation” that Plaintiff will be subjected to the same action again,

that event must be a “demonstrated probability.” Murphy, 455 U.S. at 482.

The mere possibility of IEP disputes exist in the case of every disabled student and for

whom a new IEP must be prepared annually. “The fact that a plaintiff has repeatedly challenged

each IEP developed does not establish the requisite reasonable expectation of repetition.” V.M.

v. N. Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 120 (N.D.N.Y. 2013) (internal quotation

omitted). Courts have consistently held that a party’s history of challenging the validity of an

IEP from year to year is not sufficient to show a reasonable expectation that the same conduct

will recur. See B.J.S. ex rel. N.S. v. State Educ. Dep’t/Univ. of the State of N.Y., 815 F. Supp.

2d 601, 613 (W.D.N.Y. 2011).

Here, A.J. and T.S. are enrolled in the Craven County Schools, not CMS. (Aff. Clark,

Ex. A, ¶¶ 5-8, Exs. 1-3). Furthermore, Plaintiff has presented nothing to the Court to show that

she intends to re-enroll A.J. or T.S. in CMS, or that Plaintiff even still resides in the Charlotte

Mecklenburg school district. (Aff. Clark, Ex. A, ¶ 9, Ex. 3). Thus, there is no reasonable

expectation that Plaintiff would be subjected to the same alleged wrongful actions by CMS

again.

Additionally, the parties voluntarily altered their legal relationship through the IEP

process in November of 2018. These actions resolved the substantive issues in the underlying

claims. First, as to A.J., the record establishes that her IEP team met on November 2, 2018, and

agreed to conduct a re-evaluation. (Aff. Ross, A.J. R. p. 202, ¶ 13, Ex. D). Plaintiff provided

consent for CMS to evaluate A.J. and a new IEP was implemented effective November 7, 2018.

(Aff. Ross, A.J. R. p. 202, ¶¶ 14-15, Ex. D-F). These actions by A.J.’s IEP team and Plaintiff

resolved any viable underlying dispute by Plaintiff. As to T.S., the record establishes that an IEP

team held a referral meeting in November of 2018 and agreed to evaluate T.S. in all suspected

areas of eligibility. (Aff. Ross, T.S. R. p.109, ¶¶ 15-16). Plaintiff signed the Consent to

Evaluate form for T.S. (Aff. Ross, T.S. R p.109, ¶ 17, Ex. E). These actions by the parties

resolved any viable underlying dispute by Plaintiff.2

Thus, the cases at bar are moot and do not present an “exceptional situation” in which the

“wrongs capable of repetition yet evading review” exception to the mootness doctrine applies.

Accordingly, this Court lacks subject-matter jurisdiction and will dismiss these cases as moot

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.3

2 Plaintiff’s opinion that CMS failed to cooperate with her is unsupported by the record and does

not present a live controversy for this Court. Rather, the fact that Plaintiff never returned the

parent rating scales or the social history (responses needed to fully evaluate T.S.) is evidence that

Plaintiff's own conduct unnecessarily delayed IEP development for T.S. (Aff. Ross, R. 109, R.

p. 109, ¶ 17). See B.J.S., 815 F. Supp. 2d at 613 (“a party may not, by its own conduct, create

the appearance of an actual controversy to avoid mootness.”). Ultimately, any speculative

disputes in the IEP process since November of 2018 are not before this Court and could only be

challenged by Plaintiff in a separate due process proceeding, if at all.

3 As an alternative to dismissing all claims as moot, Defendant argues that the Court must

dismiss Claim 9 in A.J. as moot and Claims 3, 4, 6 and 7 in T.S. as moot. Because the Court

IT IS THEREFORE ORDERED that:

(1) Defendant’s Motion to Dismiss, (Doc. No. 34), is GRANTED and this matter is

dismissed. To this extent, the parties’ pending summary judgment motions, (Doc.

Nos. 29, 31), are DENIED as moot.

(2) This action is dismissed with prejudice.

Signed: July 10, 2020

Korine.

Max O. Cogburn i )

United States District Judge ttget

finds that all of Plaintiff's claims must be dismissed as moot, the Court does not consider

Defendant’s alternative arguments.