Ms. M. v. Falmouth School Department

United States Court of Appeals
For the First Circuit

No. 17-1612

MS. M., individually and as parent and
legal guardian of O.M., a minor,

Plaintiff, Appellant,

v.

FALMOUTH SCHOOL DEPARTMENT,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Richard L. O'Meara and Murray, Plumb & Murray, on brief for
appellant.
Eric R. Herlan and Drummond Woodsum & MacMahon, on brief for
appellee.

November 13, 2017
 STAHL, Circuit Judge. In this case, Ms. M., acting on

behalf of her daughter O.M., brought suit against the Falmouth

School Department ("Falmouth"), alleging that it failed to provide

O.M. with a "free appropriate public education" ("FAPE") as

guaranteed by the Individuals with Disabilities Education Act

("IDEA"), 20 U.S.C. § 1400 et seq. In an earlier decision, we

held that Falmouth did not deny O.M. a FAPE and did not breach the

terms of her individualized education program ("IEP"). M. v.

Falmouth Sch. Dep't, 847 F.3d 19, 29 (1st Cir.), cert. denied, 583

U.S. __ (2017) ("Falmouth I"). We found that O.M.'s IEP did not

require Falmouth to instruct O.M. using the Specialized Program

Individualizing Reading Excellence ("SPIRE") system during her

third-grade year and therefore reversed the district court's

contrary determination and vacated the award of damages. Id.

After our decision in Falmouth I, Ms. M. returned to the

district court and sought to amend her complaint, now claiming

O.M.'s IEP was inappropriately designed because it did not include

a structured reading program like the SPIRE system.1 She had not

1
At approximately the same time, Ms. M. petitioned the
Supreme Court for a writ of certiorari to review our decision in
Falmouth I. The Supreme Court denied her petition on October 2,
2017. M. v. Falmouth Sch. Dep't, 583 U.S. __ (U.S. Oct. 2, 2017)
(16-1440).
included this claim in her district court complaint.2 The district

court denied her motion to amend, concluding that our earlier

decision "treated the dispute as ended, and that is law of the

case." M. v. Falmouth Sch. Dep't, No. 2:15-CV-16-DBH, 2017 WL

2303960, at *2 (D. Me. May 25, 2017) ("Falmouth II"). Ms. M. filed

a timely appeal to this court. After careful consideration, we

affirm.

I.

Ordinarily, we review a denial of a motion to amend a

complaint for abuse of discretion. Morales-Alejandro v. Med. Card

Sys., Inc., 486 F.3d 693, 698 (1st Cir. 2007). However, we review

de novo whether a district court properly applied the law of the

case doctrine. Negrón-Almeda v. Santiago, 579 F.3d 45, 50 (1st

Cir. 2009). Under either standard, the district court did not err

in denying Ms. M's motion to amend.

Ms. M waived her inappropriate design claim. She did

not include it in her original complaint in the district court and

she did not raise it after Falmouth argued in the district court

that, assuming the IEP did not require Falmouth to provide SPIRE

instruction to O.M., there would be no ground for concluding that

Falmouth had denied O.M. a FAPE. It is well settled in this area

2 Ms. M. states that she raised this claim at her
administrative hearing, and Falmouth has not challenged this
contention.
of law that "[c]laims not articulated to the district court cannot

be raised on appeal, even if they had been pressed before the

hearing officer." Hampton Sch. Dist. v. Dobrowolski, 976 F.2d 48,

53-54 (1st Cir. 1992). The logic behind this rule "is at least

two-fold: an appellant cannot evade the scrutiny of the district

court nor can he surprise the court on appeal with a new claim in

order to create essentially a new trial." G.D. v. Westmoreland

Sch. Dist., 930 F.2d 942, 950 (1st Cir. 1991).

Ms. M. cannot avoid this rule by amending her complaint

to respond to the adverse decision she received from this court in

Falmouth I. We generally do not "allow plaintiffs to pursue a

case to judgment and then, if they lose, to reopen the case by

amending their complaint to take account of the court's decision."

James v. Watt, 716 F.2d 71, 78 (1st Cir. 1983). In our view,

"[s]uch a practice would dramatically undermine the ordinary rules

governing the finality of judicial decisions, and should not be

sanctioned in the absence of compelling circumstances." Id. Ms.

M advances no such compelling circumstances here. She could have

pursued an inappropriate design claim originally in the district

court, just as she had at the administrative hearing. She chose

not to do so and is now bound by her choice.

Ms. M. argues that, before our decision in Falmouth I,

she was not "aggrieved" by the findings made as to the design of

O.M.'s IEP and therefore could not have pursued her inappropriate
design claim earlier. 20 U.S.C. § 1415(i)(2)(A). We disagree.

Section 1415(i)(2)(A) provides that "any party aggrieved by the

findings and decision made under this subsection, shall have the

right to bring a civil action with respect to the complaint

presented pursuant to this section . . . in a district court of

the United States." (emphasis added). Ms. M. was aggrieved by the

hearing officer's decision to reject all of her claims for relief.

She was thus entitled to bring suit based on any theory included

in her administrative complaint.

Accordingly, the district court properly denied Ms. M's

motion to amend under the law of the case doctrine. "The law of

the case doctrine precludes relitigation of the legal issues

presented in successive stages of a single case once those issues

have been decided." Cohen v. Brown Univ., 101 F.3d 155, 167 (1st

Cir. 1996). The doctrine "afford[s] courts the security of

consistency within a single case while at the same time avoiding

the wastefulness, delay, and overall wheel-spinning that attend

piecemeal consideration of matters which might have been

previously adjudicated." United States v. Connell, 6 F.3d 27, 30

(1st Cir. 1993).

Our holding in Falmouth I was clear:

Since we hold that O.M.'s IEP did not specify
that she was to receive SPIRE instruction
during her third-grade year, and because Ms.
M. does not contend that Falmouth violated her
daughter's IEP in any other way, it
 necessarily follows that Falmouth did not
breach the IEP's terms and thus did not
violate O.M.'s right to a FAPE. Accordingly,
we REVERSE the district court's determination
that Falmouth violated O.M.'s IEP and VACATE
the accompanying damages award.

847 F.3d at 29. We did not remand the case to the district court

for further proceedings. Even if we had remanded the case, the

district court would have been bound to "implement both the letter

and the spirit of the mandate, taking into account the appellate

court's opinion and the circumstances it embraces." Connell, 6

F.3d at 30.

We decided the legal issue whether Falmouth violated

O.M.'s right to a FAPE in our first decision, based on the sole

theory properly presented to us at that time. The district court

correctly concluded that our resolution of this legal issue was

the law of the case and that, absent compelling circumstances not

present here, introducing a claim that could have been raised

previously would be inappropriate. Cohen, 101 F.3d at 168.

II.

Falmouth seeks attorney fees and costs from Ms. M.'s
attorney for the defense expenses incurred after our decision in
Falmouth I. The IDEA permits a prevailing state or local education
agency to recover attorney fees if a plaintiff filed a cause of
action that was "frivolous, unreasonable, or without foundation"
or "continued to litigate after the litigation clearly became
frivolous, unreasonable, or without foundation." 20 U.S.C.
§ 1415(i)(3)(B)(i)(II).3
The district court denied Falmouth's request for
attorney fees because it found Ms. M.'s argument on the motion to
amend was not frivolous. Falmouth II, 2017 WL 2303960, at *2.
Because Falmouth did not appeal the district court's denial of
attorney fees, it has waived the issue and cannot recover its fees
and costs expended in the district court. The only question
presented to us is whether, by appealing the district court's
ruling, Ms. M. has continued to pursue this case after litigation
had clearly become "frivolous, unreasonable, or without
foundation." 20 U.S.C. § 1415(i)(3)(B)(i)(II).
We will not award attorney fees to Falmouth for the
expenses it incurred in this second appeal. Ms. M.'s appeal raises
nonfrivolous questions as to the proper scope of the law of the
case doctrine and the circumstances under which a complaint may be
amended post-appeal. Moreover, the district court invited Ms. M.
to appeal its ruling, stating that if it had erred in finding the
law of the case doctrine applied, "it is up to the plaintiff to
seek a reversal of this ruling by appealing it to the First
Circuit." Falmouth II, 2017 WL 2303960, at *2. Under these
circumstances, we do not find an award of attorney fees warranted.

Affirmed.

3In Falmouth I, we declined to award attorney fees because
Falmouth had not requested them. 847 F.3d at 29 n.10.