1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 P.G., Case No. 21-cv-01529-EMC

8 Plaintiff, PUBLIC/REDACTED VERSION

9 v.

ORDER GRANTING DEFENDANT’S

10 ALAMEDA UNIFIED SCHOOL MOTION TO DISMISS

DISTRICT,

11 Docket No. 48 Defendant. 12 13 14 P.G. is a minor. She has filed suit (through her guardian ad litem) against Alameda 15 Unified School District (“AUSD”) pursuant to the Individuals with Disabilities Education Act 16 (“Act”). See 20 U.S.C. § 1415. Currently pending before the Court is AUSD’s motion to dismiss 17 or, in the alternative, for summary judgment due to lack of standing. According to AUSD, P.G’s 18 case is moot in light of a settlement agreement reached in related proceedings. 19 Having considered the parties’ briefs and accompanying submissions, as well as the oral 20 argument of counsel, the Court hereby GRANTS the motion to dismiss. 21 I. FACTUAL & PROCEDURAL BACKGROUND 22 A. First Amended Complaint 23 In the operative first amended complaint (“FAC”), P.G. alleges as follows. 24 P.G. is an elementary school-age student. See FAC ¶ 9. In September 2019, her parents 25 asked AUSD to assess P.G. for special education and related services. See FAC ¶ 17. AUSD did 26 so. In December 2019, AUSD held an Individualized Education Program (“IEP”) team meeting to 27 review its assessment of P.G. The IEP team decided that P.G. did not need special education, 1 In June 2020, P.G.’s parents notified AUSD that they disagreed with the assessment and 2 asked for an independent educational evaluation (“IEE”). An IEE is a procedural right under the 3 IDEA. See FAC ¶ 19; see also 34 C.F.R. § 300.502 (providing that parents “have the right . . . to 4 obtain an [IEE],” which is defined as “an evaluation conducted by a qualified examiner who is not 5 employed by the public agency responsible for the education of the child in question,” subject to 6 certain conditions; also providing that “[a] parent has the right to an [IEE] at public expense if the 7 parent disagrees with an evaluation obtained by the public agency,” subject to certain conditions). 8 Several days later, the parents notified AUSD that they had selected Dr. Carina Grandison, 9 a state-licensed clinical psychologist to conduct the IEE. Dr. Grandison had previously conducted 10 other IEEs funded by AUSD and other school districts. See FAC ¶ 20. 11 In July 2020, AUSD told P.G.’s parents that Dr. Grandison no longer met the requirements 12 for an acceptable IEE provider set by its Special Education Local Plan Area (“SELPA”). See FAC 13 ¶ 21. AUSD sent the parents a list of proposed IEE evaluators but each was a school psychologist 14 or a licensed educational psychologist and “had ties to public school districts [–] some to districts 15 in AUSD’s SELPA.” FAC ¶ 22. The parents declined and thus AUSD initiated an IDEA due 16 process complaint (Case No. 2020080899). See FAC ¶ 28; see also 34 C.F.R. § 300.502(b). The 17 issue identified in the complaint was whether AUSD properly denied the request to fund an IEE 18 by Dr. Grandison based on “agency criteria that the assessor be either a licensed educational 19 psychologist or a credentialed school psychologist.” FAC ¶ 28. 20 In December 2020, the California Office of Administrative Hearings (“OAH”) issued a 21 decision in favor of AUSD. 22 P.G. now challenges that decision in this pending lawsuit. In terms of relief, P.G. asks for 23 a reversal of the OAH decision. See FAC, Prayer for Relief ¶ 1. P.G. also asserts that “AUSD’s 24 actions in denying an IEE in psycho-education for P.G. with Dr. Carina Grandison both 25 unlawfully denied and delayed the identification of P.G.’s unique educational needs and impeded 26 and delayed her ability to meaningfully access an education.” FAC, Prayer for Relief ¶ 4. She 27 asks to be “awarded compensatory education . . . for AUSD’s improper denial of the parents’ 1 fees and costs. FAC, Prayer for Relief ¶¶ 5-6. 2 B. New Administrative Proceedings After OAH Decision 3 As indicated above, OAH issued its decision unfavorable to P.G. in December 2020. P.G. 4 then initiated this lawsuit in March 2021. See Docket No. 1 (original complaint). 5 About eight months later, in November 2021, P.G. herself initiated an IDEA due process 6 complaint with the OAH (Case No. 2021120065). See Mishook Decl. ¶ 2. A copy of the 7 amended due process complaint can be found at Exhibit A to the Mishook Declaration. In the due 8 process complaint, P.G. alleges that AUSD failed to provide her with a Free Appropriate Public 9 Education (“FAPE”) within the meaning of the IDEA and the California Education Code. P.G. 10 identified multiple ways in which AUSD allegedly failed to provide her with a FAPE. One of the 11 ways was that AUSD had failed to fund an IEE. See Mishook Decl., Ex. A (Am. Due Process 12 Compl. at 10) (fourth issue presented). Subsequently, AUSD successfully moved to dismiss that 13 specific issue on the basis that it “sought to re-raise whether the District was entitled to refuse to 14 contract with Dr. Grandison in accordance with its IEE policy.” Mishook Decl. ¶ 4. 15 In April 2022, P.G. initiated a second due process complaint with OAH (Case No. 16 2022040901). A copy of the due process complaint in that matter can be found at Exhibit B to the 17 Mishook Declaration. In that complaint, P.G. alleges that her parents privately paid for an IEE by 18 Dr. Grandison and that the IEE was completed in June 2021 and provided to the AUSD. 19 According to P.G., AUSD should have reimbursed her parents for the cost of the private IEE. See 20 Mishook Decl., Ex. B (Due Process Compl. at 2) (also arguing that this issue has not yet been 21 decided by OAH: “The issue of payment/funding by the District for such an IEE has been ruled on 22 by OAH and is pending before the District Court[,] [but] that issue is different from one for 23 reimbursement to the parent for a privately-paid/privately-funded IEE such as the one the parents 24 have obtained here”). 25 OAH denied P.G.’s motion to consolidate her two due process complaints. See Mishook 26 Decl. ¶ 6. 27 About a month later, in May 2022, AUSD sent P.G. a statutory offer of settlement for the 1 did not refer to the second due process case but did “carve out” from the settlement the claim 2 pending before this Court. See Mishook Decl. ¶ 7. P.G. responded with edits, one of which was a 3 statement that the settlement would cover both of the due process cases before the OAH. See 4 Mishook Decl. ¶ 8. 5 A copy of the final settlement agreement can be found at Docket No. 45-2. The settlement 6 agreement provides, inter alia, that it is “entered into . . . for the purpose of compromising and 7 settling all past claims, both known and unknown, raised in Petitioner’s pending IDEA OAH due 8 process complaints with the exception of claims pending before the Federal District Court for the 9 Northern District of California in P.G. v. Alameda Unified School District, 3:21-cv-01529-EMC.” 10 Sett. Agmt. ¶ II.A; see also Sett. Agmt. ¶ II.B.4 (providing that parents agree to dismiss both of 11 the OAH due process matters).1 The main relief obtained by P.G. through the settlement was as 12 follows:

13 In complete satisfaction of any claim for educational services through the Effective Date of this Agreement, the District will 14

15

16 17 Sett. Agmt. ¶ II.B.1. See Sett. 18 Agmt. ¶ II.B.3. 19 Sett. Agmt. ¶ II.A. 20 In the pending motion, AUSD recognizes that there is a “carve-out” from the settlement for 21 this pending litigation; however, AUSD argues that, in spite of the carve-out, there is nothing for 22 this Court to do now that the due process matters before the OAH have settled – i.e., P.G. no 23 longer has standing to pursue this case. 24 /// 25 /// 26

27 1 Although the Court previously allowed for the sealing of the entire settlement agreement, the 1 II. DISCUSSION 2 A. Legal Standard 3 A motion to dismiss for lack of standing is brought pursuant to Federal Rule of Civil 4 Procedure 12(b)(1). See Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th 5 Cir. 2010) (noting that, “[b]ecause standing and ripeness pertain to federal courts' subject matter 6 jurisdiction, they are properly raised in a Rule 12(b)(1) motion to dismiss”). Such a motion can be 7 facial in nature or factual. See Pride v. Correa, 719 F.3d 1130, 1139 (9th Cir. 2013). Where a 8 factual attack is made and a court considers only written materials, a plaintiff need only establish a 9 prima facie case of jurisdiction. See Societe de Conditionnement en Aluminum v. Hunter Eng'g 10 Co., 655 F.2d 938, 942 (9th Cir. 1985); cf. Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 11 1280, 1285- 86 (9th Cir. 1977) (adopting that approach where personal jurisdiction is at issue). 12 B. Standing 13 For Article III standing, a plaintiff must show: (1) an injury in fact, (2) a sufficient causal 14 connection between the injury and the conduct complained of (i.e., traceability), and (3) a 15 likelihood that the injury will be redressed by a favorable decision. See Lujan v. Defenders of 16 Wildlife, 504 U.S. 555, 560-61 (1992). “[A] plaintiff must demonstrate standing separately for 17 each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), 18 Inc., 528 U.S. 167, 185 (2000) – “whether it be injunctive relief, damages or civil penalties.” Bates 19 v. UPS, 511 F.3d 974, 985 (9th Cir. 2007). 20 C. Past Injury 21 “By its plain terms, the IDEA does not limit the type of relief a court may order, so long as 22 that relief is ‘appropriate.’” Breda v. Del. Valley Sch., No. 3:20-CV-1853, 2021 U.S. Dist. LEXIS 23 119996, at *17 (M.D. Pa. June 28, 2021) (quoting 20 U.S.C. § 1415(i)(2)(C)(iii)). “‘Appropriate 24 relief is relief designed to ensure that the student is appropriately educated within the meaning of 25 the [IDEA].’” Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1033 (9th Cir. 2006). 26 “Compensatory education services can be awarded as appropriate equitable relief.” Id. The IDEA 27 also allows for “monetary awards in the form of reimbursement for services that a school 1 693 (10th Cir. 2007). 2 On the other hand, “[t]he purpose of the IDEA is to provide educational services, not 3 compensation for personal injury, and [therefore] a damages remedy – as contrasted with 4 reimbursement of expenses – is fundamentally inconsistent with this goal.” Polera v. Bd. of 5 Educ., 288 F.3d 478, 486 (2d Cir. 2002); see also Ortega v. Bibb Cty. Sch. Dist., 397 F.3d 1321, 6 1325 (11th Cir. 2005) (“Although the IDEA provides various types of remedies for plaintiffs – 7 including restitution for some parental expenses, compensatory education for students, and 8 procedural remedies – the statute does not provide tort-like relief.”); Chambers v. Sch. Dist. of 9 Phila. Bd. of Educ., 587 F.3d 176, 186 (3d Cir. 2009) (“[C]ompensatory and punitive damages are 10 not an available remedy under the IDEA. [The] language and structure make plain that Congress 11 intended to ensure that disabled children receive a FAPE under appropriate circumstances, not to 12 create a mechanism for compensating disabled children and their families for their pain and 13 suffering where a FAPE is not provided.”); Blanchard v. Morton Sch. Dist., 509 F.3d 934, 936 14 (9th Cir. 2007) (noting that “money damages are not available under the IDEA for the pain and 15 suffering of a disabled child”). Thus, there are limits to retrospective relief available under the 16 IDEA. 17 In the case at bar, P.G. seeks relief for a past injury. Specifically, she has alleged that 18 “AUSD’s actions in denying an IEE in psycho-education for P.G. with Dr. Carina Grandison both 19 unlawfully denied and delayed the identification of P.G.’s unique educational needs and impeded 20 and delayed her ability to meaningfully access an education.”2 FAC, Prayer for Relief ¶ 4. The 21 2 The Court acknowledges AUSD’s contention that, even though P.G. asked for compensatory 22 education in the FAC, she is not entitled to that relief given the scope of the issues raised in the case: 23 [The underlying OAH dispute was] a District-filed case focused solely on whether the District had to fund an assessment by Dr. 24 Grandison, or not. As already discussed in the District’s moving papers, Plaintiff did not raise any affirmative claims against the 25 District until well after the conclusion of the case at issue here. While Plaintiff is correct in her opposition that she was not required 26 to do so, her decision not to raise affirmative claims in the same case that the District defended its IEE decision means that she may not 27 raise compensatory education as a remedy here. 1 problem for P.G. is that – as AUSD contends – any remedy for this past injury has already been 2 addressed as a result of the settlement agreement entered into by the parties in connection with her 3 two OAH due process cases. For example, the settlement agreement 4 . See FAC ¶ 18 (alleging that, 5 in December 2019, AUSD held an IEP team meeting to review its assessment of P.G. and that the 6 IEP team decided that P.G. did not need special education, related services, or an IEP); Sett. Agmt. 7 ¶ II.B.1 8 9 10 11 (emphasis added). Furthermore, to the extent P.G. seeks 12 retrospective tort-like damages for, e.g., the delay in her obtaining an appropriate education, as 13 noted above, such tort-like damages are not available under the IDEA. 14 D. Future Injury 15 This leaves P.G. with a claim that she will still suffer future injury unless the instant case is 16 adjudicated. Under well-established law, "[a] plaintiff threatened with future injury has standing 17 to sue if the threatened injury is certainly impending, or there is a substantial risk that the harm 18 will occur." McGee v. S-L Snacks Nat'l, 982 F.3d 700, 709 (9th Cir. 2020). 19 P.G. suggests that she is threatened with future injury because, even though she is currently 20 in a public charter school, she still resides within the AUSD and might want to re-enroll in a 21 public school within the AUSD, depending on what services it would provide her. In this regard, 22 the Court should take note of declarations submitted by P.G.’s parents. In their declarations, they 23 note as follows: 24 • They and P.G. still reside in the AUSD. See Landesman Decl. ¶ 3; Gustas Decl. ¶ 25 3. 26 • When AUSD failed to address P.G.’s disabilities, they enrolled her in a public 27 charter school. See Landesman Decl. ¶ 4; Gustas Decl. ¶ 4. 1 IEP and an offer of a FAPE for P.G. (e.g., in January 2022 and in April 2022), so 2 that they may “consider returning PG to the District”; nothing, however, has 3 happened. Landesman Decl. ¶ 7; see also Gustas Decl. ¶¶ 4-5. 4 • “If [they] re-enroll [P.G.] into the District, and . . . should [they] disagree with [the 5 District’s] assessments and request [an IEE] with a State-licensed clinical 6 psychologist, [the District], relying on the OAH Decision in the underlying case, 7 would again deny us such an evaluation from someone who is skilled and qualified 8 to assess [their] daughter.” Landesman Decl. ¶ 7; see also Gustas Decl. ¶ 6. 9 The problem for P.G. is – as reflected by the above – the threatened injury is not “certainly 10 impending,” nor is there “a substantial risk that the harm will occur." McGee, 982 F.3d at 709. 11 Even if the Court credits P.G.’s interest in returning to the AUSD, there are still too many 12 uncertainties upon which the feared denial of P.G.’s rights are conditioned – e.g., P.G. is assuming 13 she would disagree with the AUSD’s assessment of her educational needs such that she would 14 need to ask for an IEE, and that the AUSD would deny her an IEE by a clinical psychologist 15 (whether or not Dr. Grandison). Cf. M.M. v. Lafayette Sch. Dist., 767 F.3d 842, 857 (9th Cir. 16 2014) (“Since the court could no longer grant full reimbursement or deny reevaluation [because 17 the school district had already made the full reimbursement and the reevaluation had already taken 18 place], the issues were moot. The parents also argue that they requested as a remedy declaratory 19 relief. Yet, there must still be an ‘actual controversy’ for a court to issue declaratory relief.”) 20 (emphasis added). 21 To the extent P.G. makes reference to one of the exceptions for the mootness doctrine – 22 i.e., capable of repetition yet evading review – that authority is of little help because

23 [i]n order for a case to qualify under this exception, "there must be a 'reasonable expectation' that the same complaining party will be 24 subject to the same injury again [and] the injury suffered must be of a type inherently limited in duration such that it is likely always to 25 become moot before federal court litigation is completed." 26 Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th Cir. 1996) (emphasis added). Here, the record 27 shows no such reasonable expectation. 1 III. CONCLUSION 2 For the foregoing reasons, the Court grants AUSD’s motion to dismiss and orders the 3 Clerk of the Court to enter a final judgment in accordance with this opinion. The Court’s ruling 4 here does not preclude P.G. from seeking relief based on future actions taken by AUSD which 5 more concretely threatens P.G.’s rights. 6 This order disposes of Docket No. 48. 7 8 IT IS SO ORDERED. 9 10 Dated: October 5, 2022 11 12 ______________________________________

EDWARD M. CHEN

13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27