S-1 and S-2, by and Through Their Parents and Guardians Ad Litem P-1 and P-2 P-1 and P-2, Individually v. C.D. Spangler, Jr., Chairman, State Board of Education of North Carolina the State Board of Education of North Carolina C.D. Heidgerd, Hearing Officer, Asheboro City Board of Education, and the Asheboro City Board of Education Mary SmithermanS-1 and S-2, by and Through Their Parents and Guardians Ad Litem P-1 and P-2 P-1 and P-2, Individually v. C.D. Spangler, Jr., Chairman, State Board of Education of North Carolina the State Board of Education of North Carolina C.D. Heidgerd, Hearing Officer, Asheboro City Board of Education, and the Asheboro City Board of Education Mary Smitherman
David B. Puryear, Jr. (A. Frank Johns, Booth, Harrington, Johns & Campbell, Greensboro, N.C., on brief), for plaintiffs-appellees.
Before PHILLIPS, ERVIN, and WILKINSON, Circuit Judges.
JAMES DICKSON PHILLIPS, Circuit Judge:
This
I
S1 and S2 are handicapped children enrolled in the Asheboro, North Carolina city schools. In the fall of 1983, after notifying the principal at the children‘s public school of their intentions, their parents enrolled them at their own expense in a private school for one-half of each school day to receive special education services.
The following school year, the parents demanded that the Asheboro City Board of Education (City Board) provide the children with an individualized education program comparable to that рrovided at the children‘s private school or, alternatively, provide transportation and tuition for the children to continue at the private school for the 1984-85 school year. The parents premised their demand on the EHA, which the parents claimed the City Board was violating by failing to provide their children with the “free appropriate public education” guaranteed by the Act,
The parents then instituted this action under
On December 31, 1986, the district court granted the parents’ motion for summary judgment on the claims for injunctive and declaratory relief, concluding that the EHA required a state administrative hearing at which parents could receive tuition reimbursement as appropriate relief for violations of the Act. S1 v. Spangler, 650 F.Supp. 1427 (M.D.N.C.1986). On the same day, the district court issued an order directing the City Board and its administrative hearing officer to conduct a hearing on thе parents’ claim for reimbursement, enter findings of fact and conclusions, and, if appropriate, award reimbursement; and enjoining Spangler and the State Board from further interpreting North Carolina law in a manner inconsistent with the court‘s interpretation of the EHA. Spangler, the State Board, the City Board, and the administrative hearing officer here appeal the district court‘s decision.
On September 24, 1987, while this appeal was pending, the parents and the City Board agreed to a partial settlement of the case. Under the terms of this settlement аgreement, which the district court approved by order entered the same day, the parents agreed to a voluntary dismissal with prejudice of all their claims against the City Board, in return for the City Board‘s agreement to pay their accrued tuition expenses. The State Boаrd and its Chairman were not parties to the settlement agreement, and the parents did not dismiss any of their claims against them. In light of this change in circumstances, we hold that this appeal is now moot.
Because the question of mootness implicates our jurisdiction over this apрeal, we are obligated to consider it as a preliminary matter even though neither party asserts mootness. St. Paul Fire & Marine Insurance Co. v. Barry, 438 U.S. 531, 537, 98 S.Ct. 2923, 2927, 57 L.Ed.2d 932 (1978). Without doubt, the complete settlement of the underlying dispute between the parents and the City Board has mooted the appeаl as between those parties. See Lake Coal Co. v. Roberts & Schaefer Co., 474 U.S. 120, 106 S.Ct. 553, 88 L.Ed.2d 418 (1985). The settlement‘s impact on the parents’ action against the State Board and its Chairman, however, is a more difficult question. But we need not decide whether this development moots the case in strict constitutional case or controversy terms, because we conclude that we should treat this appeal as moot for prudential reasons. See United States v. (Under Seal), 757 F.2d 600 (4th Cir.1985).
The discretionary power to withhold injunctive and declaratory relief for prudential reasons, even in a case not constitutionally moot, is well established. See United States v. W.T. Grant, 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); A.L. Mechling Barge Lines, Inc. v. United States, 368 U.S. 324, 82 S.Ct. 337, 7 L.Ed.2d 317 (1961). See generally 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction (2d ed. 1984 & Supp.1987) Sec. 3533.1. The prudential concerns that lead us to withhold such relief here are threefold.
First, and most fundamentаlly, we think the specific relief sought here no longer has sufficient utility to justify decision of this case on the merits. The parents do not seek monetary relief from the State Board and Spangler, but simply injunctive and declaratory relief against their promulgation and enforcemеnt of rules forbidding state hearing officers to decide tuition reimbursement claims. As their pleadings make clear, the parents seek this relief only as an alternative to their reimbursement, by the City Board, for past tuition expenses. They have now obtained this reimbursement--which is indeed the ultimаte object of their action for injunctive and declaratory relief against the State Board and Spangler--through settlement with the City Board. They therefore have no present need for remedial relief from the federal courts.1
To be sure, the settlement has not completely eliminated the possibility that the State Board and its Chairman may, if confronted with another tuition reimbursement claim from these particular parents, again prevent administrative determination of their claims. As the City Board has now placed their children in approрriate programs within the public school system, however, we do not think that possibility sufficiently realistic to justify the issuance of an injunction against future procedural violations were a violation of claimed right found. See W.T. Grant, 345 U.S. at 633, 73 S.Ct. at 897 (to obtain prospective injunctive relief, a pаrty must convince the court that there is some “cognizable danger” of recurrent violations, more than the “mere possibility” that suffices to keep the case alive for constitutional purposes). Nor do we believe that concern for the rights of other parents сould, in any event, justify the broad injunctive and declaratory relief sought here, for this action was neither filed nor certified as a class action. See, e.g., Inmates v. Owens, 561 F.2d 560, 562 (4th Cir.1977); see also Wilson v. Nevada, 666 F.2d 378, 381-83 & n. 5 (9th Cir.1982).2 There is also at least a question of the parents’ standing to seek injunctive and declaratory relief at this juncture. Sеe City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). See generally 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, Jurisdiction Sec. 3533.1, at 219-22; id. Sec. 3533.3 at 271 & n. 20.
Finally, we do not believe that the issues raised in this appeal require immediate resolution because they are capable of repetition yet likely to evade review. Our conclusion is based in large part on a June 17, 1987 Letter Ruling, issued after submission of this appeal by the Office of Special Education and Rehabilitative Services (OSERS) of the United States Department of Education, which has supervisory authority over federal grant-in-aid monies issued to the states under the EHA. The Letter Ruling expressly endorses the holding of the district court in this action, that the EHA requires states to authorize their hearing officers both to decide parents’ tuition reimbursement claims and to order reimbursement where the conditions of Burlington are satisfied. Given OSERS‘s specific disapproval оf the State Board‘s current procedures, we doubt that the precise conduct allegedly violative of federal procedural rights will recur; instead, we would suppose that any remaining doubt about the propriety of the current North Carolina procedures will be resolved shortly without judicial interference. We assume, for the purposes of this analysis, that the State Board and its Chairman will comply in good faith with the OSERS Letter Ruling. See United States v. (Under Seal), 757 F.2d at 604. Even if the State Board should persist in its current course of conduct, by oversight or in deliberate disregard of the OSERS directivе, or for any other reason, the issue of the legality of that conduct would be unlikely, however, to evade review, because many potential plaintiffs remain to challenge it.
Under these circumstances, we think prudence counsels against addressing the merits of this appeal. We therefore vacate the order of the district court and remand the action to that court with directions to make an appropriate determination as to whether and in what amounts attorney‘s fees should be recoverable against the state dеfendants3 and to dismiss the remainder of the action as moot. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). This disposition of the action will, of course, leave unresolved all questions raised about the State Board and its Chairman‘s liability for violations of the parents’ federal procedural rights, as well as all questions involving the appropriate remеdy for those violations. See id. at 40-41, 71 S.Ct. at 107.
SO ORDERED.
Notes
The fact that the parents still assert a claim for costs and attorney‘s fees against the State Board and Spangler does not avert mootness of the underlying action on the merits. See United States v. Ford, 650 F.2d 1141, 1143 (9th Cir.1981), cert. denied, 455 U.S. 942, 102 S.Ct. 1437, 71 L.Ed.2d 654; Doe v. Marshall, 622 F.2d 118, 119-20 (5th Cir.1980), cert. denied, 451 U.S. 993, 101 S.Ct. 2336, 68 L.Ed.2d 855; Flesch v. Eastern Pennsylvania Psychiatric Institute, 472 F.Supp. 798, 802 (E.D.Pa.1979) (“Any оther rule would largely nullify the mootness doctrine with respect to cases brought under the myriad federal statutes that authorize fee awards.“)
Neither does a determination of mootness of the action on the merits preclude an award of attorney‘s fees on remand. See Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1140 (9th Cir.1979) (issue of entitlement to attorney fees is ancillary to underlying action on merits and survives mooting of that action). The issue is thereafter determinable under the court‘s continuing equitable jurisdiction, see id., and is most appropriately detеrmined in the first instance by the district court on remand. See, e.g., Doe v. Marshall, 622 F.2d at 119.