In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐1901
JASON OSTBY and JILL OSTBY,
individually and as next friends of
Jacob O., a minor,
Plaintiffs‐Appellants,
v.
MANHATTAN SCHOOL DISTRICT
NO. 114,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14‐cv‐07778 — John Robert Blakey, Judge.
ARGUED DECEMBER 5, 2016 — DECIDED MARCH 16, 2017
2 No. 16‐1901
Before EASTERBROOK and ROVNER, Circuit Judges, and
SHADID, District Judge.*
ROVNER, Circuit Judge. Jason and Jill Ostby sued Manhattan
School District 114 (“District”) under the Individuals with
Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“Act”), for
review of an administrative decision regarding their son’s
individualized educational program. With the exception that
we note below, we vacate the district courtʹs judgment and
remand the case with directions to dismiss it as moot.
I.
The Act is designed “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 and prepare them
for further education, employment, and independent living.”
20 U.S.C. § 1400(d)(1)(A). In order to implement this goal, the
Act provides for the evaluation of disabled children and the
development of an individualized education program (“IEP”)
for each disabled child. The IEP is a written statement that is
developed, reviewed and periodically revised in accordance
with the Act. 20 U.S.C. § 1414(d)(1)(A)(i). It documents the
child’s present levels of academic achievement and functional
performance; provides a list of measurable annual goals;
describes how the child’s progress towards the goals will be
measured; and presents a statement of the special education
*
The Honorable James E. Shadid, of the Central District of Illinois, sitting
by designation.
No. 16‐1901 3
and related services to be provided to the child, among other
things. 20 U.S.C. 1414(d)(1)(A).
The Ostbys’ son, Jacob, has been diagnosed with Attention
Deficit Hyperactivity Disorder and Disruptive Mood Dys‐
regulation Disorder. As a result of these disorders, he struggles
with self‐management, behavior regulation and social skills.
Consequently, he requires an IEP and has received IEPs since
he began attending pre‐school at the age of four. In his pre‐
school and kindergarten years, Jacob’s parents sometimes
requested additional testing or changes to the services pro‐
vided to Jacob under his IEP. At times, the parents obtained
private evaluations of their son’s condition at their own
expense. For his first year of kindergarten, Jacob was placed in
the early childhood special education classroom. When he
repeated kindergarten, he was moved to a general education
classroom with additional support services. Jacob’s second
year of kindergarten was marked by a number of behavioral
disturbances and recommendations by the District to change
Jacob’s placement and services. His parents disagreed with
some of these recommendations and Jacob was allotted
additional support services instead. By January 2014, the
Ostbys had opted to file a due process complaint, a mechanism
in the Act for parents to initiate an administrative hearing
process to resolve disputes surrounding IEPs. 20 U.S.C.
§ 1415(b).
Near the end of that school year, on March 26, 2014, after
additional testing, the Ostbys and the psychologist they hired
to evaluate Jacob met with the District to develop a new IEP.
As a result of that meeting, some of Jacob’s services were
discontinued and a Behavioral Intervention Plan was adopted.
4 No. 16‐1901
The District also recommended that Jacob’s placement be
changed from the general education setting to the Social
Emotional Learning Foundations program (“SELF program”).
Jacob’s parents objected to the SELF program placement and
it was not adopted at that time. With approximately twenty
days left in the school year, Jacob struggled with the new
Behavioral Intervention Plan.
On June 5, 2014, as the school year ended, the parties
reconvened to discuss Jacob’s IEP. As a result of this meeting,
the District again recommended that Jacob be placed in the
SELF program for first grade, his parents again objected and
the District sought to place Jacob in the SELF program over his
parents’ objections. The SELF program is a restricted form of
education that is not part of a mainstream classroom. More‐
over, the SELF program was housed at a different school in a
different school district. One goal of the Act is to educate
disabled children in the least restrictive environment:
To the maximum extent appropriate, children with
disabilities, including children in public or private
institutions or other care facilities, are educated with
children who are not disabled, and special classes,
separate schooling, or other removal of children
with disabilities from the regular educational envi‐
ronment occurs only when the nature or severity of
the disability of a child is such that education in
regular classes with the use of supplementary aids
and services cannot be achieved satisfactorily.
20 U.S.C. § 1412(a)(5)(A). Jacob’s parents believed that the
SELF program was more restrictive than necessary and that he
No. 16‐1901 5
should remain in the general education setting in his home
district.
When parents object to a new placement and file a due
process complaint, a “stay‐put” provision in the Act maintains
the status quo of the child’s placement until the complaint has
been fully resolved. 20 U.S.C. § 1415(j) (“during the pendency
of any proceedings conducted pursuant to this section, unless
the State or local educational agency and the parents otherwise
agree, the child shall remain in the then‐current educational
placement of the child, … until all such proceedings have been
completed.”). As a result of the stay‐put provision, Jacob was
never moved to the SELF program. As the administrative
process progressed through hearing, decision, and appeal,
Jacob remained in the general education setting with support
services in place. After the administrative process resulted in
a ruling in favor of the District, the Ostbys filed suit in the
district court, seeking review of the decision. The district court
upheld the administrative decision, concluding that the District
met the Act’s substantive requirement of providing Jacob with
a free appropriate public education when it decided that
placement in the SELF program for first grade was the least
restrictive environment that would meet that goal. The court
also ordered the District to reimburse the Ostbys for certain
expenses they incurred in having Jacob evaluated. The Ostbys
appeal.
II.
In their appeal, the Ostbys contend that the district court
erred when it found that the District’s placement of Jacob in
the SELF program complied with the Act’s “least restrictive
6 No. 16‐1901
environment” requirement. The District continues to defend
Jacob’s first‐grade placement in the SELF program and urges
this court to affirm the district court’s grant of summary
judgment in favor of the District. The district court’s opinion
granting judgment in favor of the District indicated that, as of
a December 2015 status hearing, “a general consensus [was]
thankfully emerging among the parties regarding Jacob’s
placement and educational plan going forward.” R. 120, at
17–18. At oral argument, we asked the parties if an agreement
on Jacob’s placement had in fact been reached and whether
that agreement rendered the appeal moot. The parties repre‐
sented that they had agreed to a new IEP for Jacob’s third
grade year and it did not include placement in the SELF
program. We ordered supplemental briefing on the issue of
mootness.
As a result of that briefing, we now know that, as the
Ostbys’ complaint moved through the system, Jacob pro‐
gressed through school, completing first and second grade at
his home school in the general education setting because of the
stay‐put provision. Jacob is now in third grade at a different
school in the same District; his prior school housed students
only through second grade. The District and the Ostbys have
reached an agreement regarding Jacob’s IEP and his placement
in general education for third grade, and the District has no
pending proposal to move Jacob to the SELF program. Even
though Jacob is now in third grade and the District claims to
have no present intention of transferring him to the SELF
program, the District nevertheless continues to defend its
decision to place Jacob in the SELF program for first grade.
And even though they have now agreed to a new IEP for third
No. 16‐1901 7
grade, the Ostbys continue to challenge the District’s decision
to place Jacob in the SELF program in first grade.
The Ostbys maintain that the appeal is not moot because
(1) this court has the power to redress Jacob’s past injuries by
an award of attorneys’ fees; (2) the court can prevent future
harm to Jacob by rejecting the SELF placement as suitable; and
(3) the case falls into the exception for injuries that are capable
of repetition but evading review because the District is likely
to revisit its decision to transfer Jacob into the SELF program
in the future.
Article III of the Constitution limits our jurisdiction to
actual, ongoing cases or controversies. Honig v. Doe, 484 U.S.
305, 317 (1988); Board of Educ. of Downers Grove Grade Sch. Dist.
58 v. Steven L., 89 F.3d 464, 467 (7th Cir. 1996). This requirement
applies through all stages of federal judicial proceedings; to
sustain jurisdiction, it is not enough that the dispute was alive
when the case was filed or when an appeal was taken. Lewis v.
Continental Bank Corp., 494 U.S. 472, 477–78 (1990); Honig, 484
U.S. at 317–18; Steven L., 89 F.3d at 467. The parties must
continue to have a personal stake in the outcome of the
lawsuit. Lewis, 494 U.S. at 478. “To invoke the jurisdiction of a
federal court, a litigant must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to
be redressed by a favorable judicial decision.” Lewis, 494 U.S at
477. See also Brown v. Bartholomew Consol. Sch. Corp., 442 F.3d
588, 596 (7th Cir. 2006) (a case becomes moot when a courtʹs
decision can no longer affect the rights of litigants in the case
and simply would be an opinion advising what the law would
be upon a hypothetical state of facts).
8 No. 16‐1901
The Ostbys cannot meet this standard at this stage of the
litigation because there is no longer an injury that can be
redressed by a favorable decision. Jacob is no longer in first
grade and is no longer subject to the challenged IEP. More
importantly, the Ostbys and the District have now agreed that
the general education setting is appropriate for Jacob, and the
District has no present intention to transfer him to the SELF
program. The parties have agreed to an IEP for his third grade
year in his new school. A finding that the district court erred in
affirming the appropriateness of Jacob’s first grade IEP would
offer him no relief at this stage. See Brown, 442 F.3d at 596 (in an
action seeking only injunctive relief, once the threat of the act
sought to be enjoined dissipates, the suit ordinarily must be
dismissed as moot); Lillbask ex rel. Mauclaire v. Connecticut Dept.
of Educ., 397 F.3d 77, 83–84 (2d Cir. 2005) (where a student
advances with peers under a stay‐put order, and the school
district concedes after the lifting of stay‐put order that the
parents’ preferred placement is now appropriate, there is no
longer a live controversy).
Nor is Jacob’s case subject to the exception to the mootness
doctrine for cases “capable of repetition, yet evading review.”
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976
(2016). That exception applies only in limited circumstances:
where (1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expira‐
tion, and (2) there is a reasonable expectation that
the same complaining party will be subject to the
same action again.
No. 16‐1901 9
Lewis, 494 U.S. at 481; Murphy v. Hunt, 455 U.S. 478, 482 (1982).
In this case, the District concedes that the IEP recommendation
that Jacob be placed in the SELF program was, by its nature,
too short in duration to be fully litigated prior to its cessation
or expiration. See Honig, 484 U.S at 322 (acknowledging that
administrative and judicial review under the Education of the
Handicapped Act is often “ponderous,” taking a number of
years to reach resolution); Brown, 442 F.3d at 599 (“Because IEP
challenges usually endure longer than the nine‐month school
year, most circuits hold that the first, durational element of the
mootness exception is satisfied in these cases.”). The first part
of the exception is therefore met.
The question, then, is whether there is a reasonable expecta‐
tion that Jacob will be subject to the same action again. The
Ostbys rely on Honig to demonstrate that the injury here is
capable of repetition. In Honig, the Supreme Court addressed
a challenge to a state‐wide policy that allowed schools to
unilaterally change the placement of a child for conduct
growing out of the child’s disability. Honig, 484 U.S. at 318–20.
For example, under California’s state‐wide policy, a school
could suspend or expel a student for behavioral incidents
arising from the student’s disability. Of the two plaintiffs in
Honig, one had aged out of the school system entirely during
the pendency of the litigation, and the Court concluded that
the case was moot as to that student. 484 U.S. at 318. The other
student, however, remained eligible for another year of school
in the State’s system. The nature of his disability made it likely
that he would continue to engage in disruptive conduct at
school. And the State, throughout the litigation, continued to
insist that all local districts retained the residual authority to
10 No. 16‐1901
exclude disabled children for dangerous conduct. In that
instance, where the student was likely to engage in the same
conduct and the State held to its policy position, the Court
determined that there was a reasonable expectation that the
student would once again be subjected to a unilateral change
in placement for conduct growing out of his disabilities.
484 U.S. at 318–20. See also Brown, 442 F.3d at 599 (in assessing
whether there is a reasonable likelihood that school officials
would subject a student to the same action again, courts
consider (1) the nature of the student’s disability, and (2) the
school officials’ insistence on their right to unilaterally take the
same action).
The Ostbys argue that Jacob continues to suffer from
disabilities that result in impairments to his behavior and
mood, and he continues to be educated pursuant to IEPs that
are revised at least annually. Although he has changed schools,
he is in the same District. The Ostbys assert that Jacob is
therefore highly likely to be faced with a SELF program
placement issue again. A ruling that the SELF program
placement was inappropriate could prevent further injury,
they contend. They also point out that the District has not
formally settled the case; it has simply agreed to a new IEP and
says that it has no present intention of changing Jacob’s
placement.
It is true that Jacob suffers from disabilities that can be
expected to continue to cause impairments to his behavior and
mood. However, unlike the State in Honig, which continued to
defend the applicability of its policy in the future, the District
here now agrees that there is no need to place Jacob in the
SELF program. His current IEP does not include a SELF
No. 16‐1901 11
program placement and his parents are in agreement with the
District on his current placement. That makes his case more
akin to Lillbask and Brown than Honig. In Lillbask, the defen‐
dants expressly represented to the court that they had “no
present intent to remove [the student] from his mainstream
educational environment” to a program in a different district.
397 F.3d at 88. The student argued that, despite the defendants’
present concession about the propriety of the student’s
placement in his home district, the defendants could not
demonstrate that his challenge to his prior IEP “is moot
because defendants may, in formulating some future IEP,
again attempt to place” the student at a private special educa‐
tion facility. 397 F.3d at 88. The court held that this possibility
was not enough to save the case from mootness:
The possibility of such a move exists in the case of
every disabled child who is presently in a main‐
stream classroom and for whom a new IEP must be
prepared annually. A plaintiff must point to some‐
thing more in the record to lift that possibility
beyond the speculative.
Lillbask, 397 F.3d at 88 (italics in original). As in Lillbask, the
Ostbys point to nothing in the record to call into question the
sincerity of the District’s declaration that it has no intention to
move Jacob into the SELF program. Instead, the parties’
agreement on Jacob’s current IEP suggests that a proposal to
transfer Jacob from a mainstream educational environment is
not reasonably likely to occur. Lillbask, 397 F.3d at 89.
In Brown, a student with autism who challenged an IEP
moved to another district during the pendency of the litigation.
12 No. 16‐1901
His parents then agreed to a new IEP in the new district. We
considered whether the case became moot or whether it fell
under the “capable of repetition yet evading review” exception
to the mootness doctrine. We concluded that the case was
distinguishable from Honig and was moot:
Here, Bobby’s autism presents an evolving set of
challenges for educators, one that requires his IEP to
be periodically revised. What was right for Bobby in
kindergarten may not be the proper educational
program when he enters the third grade. The dis‐
pute over the 2002–2003 IEP turned on whether
Bobby was ready for full‐time mainstream class.
Now, as a nine‐year old, Bobby’s readiness for
mainstream education presents a different question
calling for reassessment of his educational develop‐
ment. Were we to decide, at this later date, whether
mainstreaming was right for Bobby back in
2002–2003, we would be issuing, in effect, an advi‐
sory opinion. Our decision would merely tell the
parties who was correct about Bobby’s outdated IEP.
It would do nothing to define the contours of the
parties’ continuing legal relationship under the
IDEA such that future repetitions of the injury could
be avoided. The case therefore must be dismissed as
moot.
Brown, 442 F.3d at 599–600. Jacob’s circumstances are virtually
indistinguishable from those in Brown and Lillbask. We must
similarly conclude that his appeal is moot.
No. 16‐1901 13
Nor is the possible availability of attorneys’ fees enough to
keep the case alive under these circumstances. Under the Act,
a court may, in its discretion, award attorneys’ fees to a
prevailing party who is a parent of a child with a disability.
20 U.S.C. § 1415(i)(3)(B). The term “prevailing party” under
section 1415(i)(3)(B) has the same meaning as the phrase does
in 42 U.S.C. § 1988. Board of Educ. of Oak Park v. Nathan R.,
199 F.3d 377, 382 (7th Cir. 2000). A party prevails if he or she
obtains relief on the merits through an enforceable judgment,
consent decree or settlement that materially alters the legal
relationship between the parties by modifying the defendant’s
behavior in a way that directly benefits the plaintiff. Farrar v.
Hobby, 506 U.S. 103, 111–12 (1992); Nathan R., 199 F.3d at 382.
The term “prevailing party” does not include a party that
achieves the desired result without a judgment on the merits
or a court‐ordered consent decree but because the lawsuit
brought about a voluntary change in the defendant’s conduct.
Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of
Health & Human Res., 532 U.S. 598, 600 (2001).
Once a case is moot, we cannot consider the merits of the
district court’s decision to determine whether the parents are
prevailing parties for the purpose of assessing attorneys’ fees.
Nathan R., 199 F.3d at 381 (“Because we would need to con‐
sider the merits to determine whether the Parents are prevail‐
ing parties, we agree that we cannot decide whether the
Parents would be entitled to attorneys’ fees from the proceed‐
ings in the district court.”); Steven L., 89 F.3d at 468 (“Because
this case is moot, we cannot consider the merits of the district
court’s memorandum opinion and order. To do so would be to
issue an advisory opinion solely to determine who pre‐
14 No. 16‐1901
vailed.”). The Ostbys did not prevail before the district court
and we may not consider the merits of that decision solely for
the purpose of determining their entitlement to attorneys’ fees.
To the extent that they achieved what they were seeking when
the District eventually agreed that the SELF program place‐
ment was no longer appropriate going forward, that informal
and voluntary agreement does not render them a prevailing
party under Buckhannon.
Nor are the Ostbys entitled to attorneys’ fees for the relief
they obtained from the application of the stay‐put provision
during the pendency of the administrative process. Because
they initiated the administrative process and invoked the stay‐
put provision, Jacob was able to stay in his preferred educa‐
tional placement until the parties reached agreement on a new
IEP that did not include placement in the SELF program. But
“this de facto ‘win’ does not rise to the level of an enforceable
judgment, consent decree, or settlement that materially alters
the relationship between the parties.” Nathan R., 199 F.3d at
382. The relief achieved was only interim in nature, and “this
circuit previously has held that the receipt of interim relief
does not qualify a party for attorneys’ fees.” Nathan R., 199
F.3d at 382. See also Steven L., 89 F.3d at 469 (attorneys’ fees
may not be awarded for interim relief). And in any case,
informal relief, provided voluntarily by the defendant, does
not entitle the parents to prevailing party status under
Buckhannon. See also Steven L., 89 F.3d at 469 (where the
parents’ only ultimate victory is the invocation of the stay‐put
provision, and the outcome of the suit results in no enforceable
obligations for the school district, the parents cannot be
considered to have substantially prevailed). There is therefore
No. 16‐1901 15
no relief that this court could grant and the appeal challenging
Jacob’s first‐grade placement in the SELF program is moot.
However, there is one part of the underlying case that is not
moot. In addition to challenging the District’s decision to place
Jacob in the SELF program, the Ostbys also sought
reimbursement for private evaluations of Jacob. The district
court awarded the Ostbys $3126.10 for that claim and the
District did not challenge that ruling on appeal. That part of
the district court’s judgment is not moot and remains intact on
remand. See Brown, 442 F.3d at 596 (where a plaintiff seeks
monetary damages, his case is not moot even if the underlying
misconduct that caused the injury has ceased). In every other
respect, we vacate the district court’s judgment and remand
the case with directions to dismiss it as moot. Each party shall
bear their own costs on appeal.
VACATED AND REMANDED IN PART.