Cassandra Ortega v. Bibb County School District

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2005
THOMAS K. KAHN
No. 04-10314 CLERK

D. C. Docket No. 00-00366 CV-2-HL-5

CASSANDRA ORTEGA,
Individually, and as the parent, guardian, and next
friend of Antione Ortega, deceased,

Plaintiff-Appellee,

versus

BIBB COUNTY SCHOOL DISTRICT,

Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of Georgia

(January 26, 2005)

Before DUBINA, BLACK and KRAVITCH, Circuit Judges.

DUBINA, Circuit Judge:
 This is a tragic case involving the death of a four-year-old boy. The district

court entered an order denying defendant/appellant Bibb County School District’s

(“School District”) motion for summary judgment on plaintiff/appellee Cassandra

Ortega’s (“Ortega”) claim brought under the Individuals with Disabilities

Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. We granted the School

District’s petition for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and

we reverse the district court’s order because Ortega has no valid cause of action

for tort-like relief under the IDEA.

I. BACKGROUND

A. Facts

Antione Ortega (“Antione”) was born prematurely on August 14, 1994.

During the first four months of his life, Antione was on a ventilator. After doctors

removed Antione from the ventilator, they performed a tracheostomy, which is the

placement of a tracheotomy tube in the trachea or windpipe. In 1996, doctors

removed the tracheotomy tube. In 1997, School District personnel met with

Antione to determine whether he was eligible for special education services. They

evaluated Antione and determined that he was eligible for special education

services in the area of significant developmental delay. An individualized

education program team (“IEP team”) met on October 30, 1997, and developed an

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individualized education program (“IEP”) for Antione. In November of that same

year, Antione enrolled in the special needs pre-kindergarten program at the Butler

Early Childhood Center. At that time, Antione did not have a tracheotomy tube.

Antione stopped attending school before the Christmas holidays in 1997 and did

not return to school that school year.

A doctor certified that Antione was able to return to school in August 1998.

When Antione returned to school, he had a tracheotomy tube. Gloria Johnson

(“Ms. Johnson”), Antione’s teacher, questioned Ortega about Antione’s

tracheostomy and received instructions from Ortega about caring for it. Ms.

Johnson told Ortega that she would consult with the school nurse about any

questions she might have concerning the tracheostomy. Ortega stated in her

deposition that she left Antione at school with the assurance that the school had a

nurse on staff, and Antione would be cared for.

On his second day at school, Antione was playing on the school’s

playground equipment as his teacher, Ms. Johnson, watched him. As Antione

started to come down the steps of the platform where he was playing, he collapsed.

Ms. Johnson and another paraprofessional carried Antione inside, while Ms.

Johnson’s paraprofessional ran inside the school to get help. When they laid

Antione down, Ms. Johnson noticed that Antione’s tracheotomy tube was

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dislodged. Ms. Johnson took Antione’s pulse, and the school’s physical therapist

began doing mouth-to-mouth resuscitation. School employees called 911, and the

operator instructed the employees to change from mouth-to-mouth resuscitation to

mouth-to-stoma. School officials claimed that the operator also instructed them

not to attempt to reinsert the tracheotomy tube. Paramedics arrived thereafter and

attempted emergency efforts before taking Antione to the emergency room.

Shortly after he arrived at the emergency room, emergency room personnel

pronounced Antione dead. The cause of death was asphyxiation.

B. Procedural History

Ortega, individually, and as the parent, guardian, and next friend of

Antione, filed a six-count complaint against the School District and other

defendants seeking to recover for Antione’s alleged wrongful death. Among other

claims, Ortega asserted that she was entitled to recover for Antione’s death

because the School District allegedly violated the IDEA by failing to have a

person capable of reinserting Antione’s tracheotomy tube at the Butler Early

Childhood Center at the time of the incident in question. The School District

moved for summary judgment with respect to all claims asserted by Ortega.

Concerning Ortega’s IDEA claim, the School District argued that any claim

Ortega might have under the IDEA was mooted by Antione’s death and that the

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School District did not violate the IDEA. Alternatively, the School District

asserted that Ortega did not establish an Article III case or controversy because the

only relief Ortega sought on her IDEA claim was costs and attorney’s fees.

Subsequently, the district court entered an order denying the School

District’s motion for summary judgment with respect to Ortega’s IDEA claim.

The district court determined that Ortega’s claim was not moot because, even

though monetary damages are not available under the IDEA, a district court has

discretionary authority to “grant such relief as the court determines is appropriate.”

20 U.S.C. § 1415(i)(2)(B)(iii). The district court determined that appropriate relief

in this case would be nominal damages for Ortega if she succeeded on her IDEA

claim. The district court also determined that a question of fact existed whether

the School District violated the IDEA because it did not have a nurse or other

qualified person capable of reinserting Antione’s tracheotomy tube on the

premises of the school at the time of the incident.

The School District filed a Motion for Reconsideration with respect to that

part of the district court’s order denying its motion for summary judgment. The

district court denied the Motion for Reconsideration and granted the School

District’s request for a permissive interlocutory appeal. The School District then

filed a petition for permission to appeal with this court, which we granted.

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 II. ISSUE

1. Whether tort-like money damages are available under the Individuals

with Disabilities Education Act.

III. STANDARD OF REVIEW

This court reviews de novo the district court’s order denying summary

judgment, applying the same standards that governed the district court’s decision.

LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 834-35 (11th Cir. 1998).

IV. DISCUSSION

The IDEA1 was enacted, in part, “to ensure that all children with disabilities

have available to them a free appropriate public education that emphasizes special

education and related services designed to meet their unique needs.” 20 U.S.C. §

1400(d)(1)(A). Consistent with this purpose, the IDEA authorizes federal

financial assistance to States that agree to provide disabled children with special

education and related services. See 20 U.S.C. § 1411. The term “related services”

includes “transportation, and such developmental, corrective, and other supportive

services (including . . . medical services, except that such medical services shall be

for diagnostic and evaluation purposes only) as may be required to assist a child

1
The IDEA was amended recently by the Individuals with Disabilities Education
Improvement Act of 2004, Pub. L. No. 108-446, § 302. The amendment takes effect July 1, 2005,
and does not impact this case.

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with a disability to benefit from special education.” 20 U.S.C. § 1401(22). In

other words, related services are those “that enable a disabled child to remain in

school during the day [to] provide the student with the meaningful access to

education that Congress envisioned.” Cedar Rapids Cmty. Sch. Dist. v. Garret F.,

526 U.S. 66, 73, 119 S. Ct. 992, 997 (1999) (citation and internal quotation marks

omitted).

Under the IDEA, schools evaluate each child with a disability to develop

and implement an IEP for each child, specifying educational and developmental

goals for the child. See generally 20 U.S.C. § 1414. An IEP team consists of

several people, including the child’s regular education teacher, a special education

teacher, a local education agency official, the child’s parents, and when

appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). The IEP team develops each

child’s IEP, which must include a statement of the child’s present levels of

educational performance; a statement of annual goals, including long and short-

term objectives; a statement of the specific special education and related services

to be provided to the child; a statement of the transition services needed by the

child, where applicable; the projected date on which the services will begin and

their anticipated duration; and objective criteria and evaluation procedures to be

used to determine whether the instructional objectives are being achieved. See 20

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U.S.C. § 1414(d)(1)(A). The local educational agency shall ensure that the IEP

team reviews the child’s IEP periodically, but not less than annually, to determine

whether the child is achieving the annual goals. 20 U.S.C. § 1414(d)(4).

The IDEA also grants parents and students certain procedural rights. See

generally 20 U.S.C. § 1415. For example, when parents are not satisfied with the

IEP, they may file a complaint with the school district. 20 U.S.C. §§ 1415(b)(6),

(k)(6). Either the local or state educational agency resolves the complaint by

conducting an impartial due process hearing. 20 U.S.C. § 1415(f). A party not

satisfied with the decision of the hearing officer may bring a civil suit in federal

district court. 20 U.S.C. §§ 1415(i)(2)-(3).

On appeal, the School District contends that the district court erred in

denying its motion for summary judgment because Ortega’s claim under the IDEA

is moot because of Antione’s death. The School District also argues that Ortega

did not establish an Article III case or controversy because the only relief Ortega

sought on her IDEA claim was costs and attorney’s fees. We agree with the

School District that the district court erred in denying the School District’s motion

for summary judgment because Ortega cannot establish an Article III case or

controversy.

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 Ortega does not have a cognizable IDEA claim. Although the IDEA is

silent about the availability of tort-like damages, “[t]ort-like damages are simply

inconsistent with IDEA’s statutory scheme.” Sellers v. Sch. Bd. of the City of

Manassas, 141 F.3d 524, 527 (4th Cir. 1998). “The purpose of the IDEA is to

provide educational services, not compensation for personal injury, and a damages

remedy – as contrasted with reimbursement of expenses – is fundamentally

inconsistent with this goal.” Polera v. Bd. of Educ., 288 F.3d 478, 486 (2d Cir.

2002). “The IDEA’s central mechanism for the remedying of perceived harms is

for parents to seek changes to a student’s program.” Id. at 483.

The IDEA mandates that the School District provide a free appropriate

public education for a disabled child. The “IDEA provides a panoply of

procedural rights to parents to ensure their involvement in decisions about their

disabled child’s education.” Sellers, 141 F.3d at 527. As noted earlier, the IDEA

specifically sets forth procedures by which school officials are to abide in order to

provide a disabled child with a free appropriate public education. See 20 U.S.C.

§§ 1414, 1415. “The purpose of these procedural mechanisms is to preserve the

right to a free appropriate public education.” Sellers, 141 F.3d at 527. Although

the IDEA provides various types of remedies for plaintiffs - including restitution

for some parental expenses, compensatory education for students, and procedural

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remedies – the statute does not provide tort-like relief. Furthermore, the IDEA

highlights other statutes as possible avenues for recovery, stating the IDEA does

not “restrict or limit the rights, procedures, and remedies available under the

Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et

seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other

Federal laws protecting the rights of children with disabilities.” 20 U.S.C. §

1415(l).

Thus, we agree with our sister circuits that the “IDEA’s primary purpose is

to ensure [a free appropriate public education], not to serve as a tort-like

mechanism for compensating personal injury.” Nieves-Marquez v. Puerto Rico,

353 F.3d 108, 125 (1st Cir. 2003). See Witte v. Clark County Sch. Dist., 197 F.3d

1271, 1275 (9th Cir. 1999) (noting that monetary damages are “not ‘relief that is

available’ under the IDEA”); Charlie F. v. Bd. of Educ. of Skokie Sch. Dist., 98

F.3d 989, 991 (7th Cir. 1996) (“[W]e conclude that damages are not ‘relief that is

available under’ the IDEA. This is the norm for social-welfare programs that

specify benefits in kind at public expense, whether medical care or housing or,

under the IDEA, education.”); Heidemann v. Rother, 84 F.3d 1021, 1033 (8th Cir.

1996) (holding that “general and punitive damages for the types of injuries alleged

by plaintiffs are not available under the IDEA”); see also Gean v. Hattaway, 330

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F.3d 758, 774 (6th Cir. 2003) (“However, [the district court’s] discretion to award

monetary damages under this statute extends only to restitution for money that

should have been paid by the state for educational services – not to ‘general

damages.’”); Babicz v. Sch. Bd. Of Broward County, 135 F.3d 1420, 1422 n.10

(11th Cir. 1998) (noting in dicta that “[i]mplicit in this legal strategy to avoid

IDEA is an apparent desire for compensatory damages not available under

IDEA”).

Because we hold that the IDEA does not provide a cause of action for tort-

like relief, Ortega has no valid cause of action.2 Hence, she does not present the

court with a “case” or “controversy” under Article III, § 2 of the U.S. Constitution.

Article III, § 2

enables the judicial department to receive jurisdiction to the full extent of
the constitution, laws, and treaties of the United States, when any question
respecting them shall assume such a form that the judicial power is capable
of acting on it. That power is capable of acting only when the subject is
submitted to it by a party who asserts his rights in the form prescribed by
law. It then becomes a case, and the constitution declares, that the judicial
power shall extend to all cases arising under the constitution, laws, and
treaties of the United States.

2
By deciding that the IDEA provides no valid cause of action for tort-like relief, we are, in
other words, determining that there is no implied private right of action in the statute. See Alexander
v. Sandoval, 532 U.S. 275, 121 S. Ct. 28 (2001) (clarifying the approach courts are obligated to
follow in determining whether to imply a private right of action from a statute). However, the parties
did not address this issue, and we do not address issues that were not raised and argued on appeal.
O’Neal v. Gonzalez, 839 F.2d 1437, 1440 (11th Cir. 1988). We do note that had we followed the
dictates of Sandoval in this case, the result would have been the same.

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Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 819 (1824) (Marshall, C.J.). If a

federal law does not provide a cause of action, then a plaintiff cannot validly

invoke federal jurisdiction, and thus no “case” or “controversy” arises. Jensen v.

Mitschele Contracting Co., 630 F.2d 209, 211-12 (3d Cir. 1980) (“Federal law

gives them no right of action; therefore, they have no right to invoke federal

jurisdiction. . . . Perceiving no case or controversy arising under federal law, we

leave the appellants to seek redress in [state court].”).

Accordingly, we reverse the district court’s order and remand the case with

instructions that the district court enter summary judgment for the School District

on Ortega’s IDEA claim because she presents no justiciable claim.

REVERSED and REMANDED.

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